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this standpoint the case is a very different one from Phill. on Ev. 411; Archb. Cr. Pl. 131, and note by those cited by him, and will also, we believe, agree Waterman. with us that, if what the judge said is to be taken as The same law of evidence is announced by Hawthe basis of the decision, the case is wrong in principle kins, East and Leach, and is based upon innumerable and sustained by no authority, ancient or modern. – decisions. ED, A. L. J.)
Nobody denies the general rule that confessions im
properly obtained are inadmissible against the prisoner, CONCERNING TWO NORTH CAROLINA DECISIONS. but the limitations of that rule, as expressed above,
are as well established as the rule itself. The rule To the Editor of the Albany Law Journal:
thus limited fully covers The State v. Graham. SIR– In your review of the 21st American Reports The reason why extorted confessions are excluded in the 22d number of your valuable JOURNAL, the de- is, that not being voluntary, they may not be true. cision of the court in the case of The State v. Graham, Hence, if one thus influenced confesses his guilt, the 74 N. C. 646, is severely criticised; and in the last evidence will be excluded because it may not be true; number Mr. J. W. Judd has approved and repeated but if, in consequence of a confession improperly inthese strictures. May I not, without offense, respect- duced, a material fact is brought to light, that fact is fully suggest that both of you have either misappre-competent evidence, because it is a fact, independent hended the point there decided, or have mistaken the of the confession, and being natural evidence, exlaw ?
trinsic to the confession, the prisoner has no more right The prisoner was indicted for larceny, and his con- to complain than if a witness had testified to have viction depended upon identifying him as the person seen him make the tracks. All that the court dewho made certain foot-tracks which were admitted to cided in Grabam's case was, that the evidence was be those of the thief, made when committing the competent. It was for the jury to say what weight felony. The officer having the prisoner in charge com
and effect it should have, in connection with the other pelled him to place his foot in the tracks, and was then testimony. allowed to give in evidence the result of the compari
A pocketbook is stolen, and it is proposed to search son. Whether this evidence was competent was the the person accused, and, upon his objecting, his perprecise question before the court. In delivering the son is searched by force and the pocketbook is found opinion, the judge, speaking for the court, said: “We upon him. No one will deny that the fact of so findagree in the opinion that when the prisoner, upon be- ing the stolen article is competent evidence against ing required by the officer to put his foot in the track, him. So if one, charged as the thief, is alleged to did so, the officer might properly testify as to the re
have made certain tracks admitted or proved to be sult of that comparison. It is unnecessary to sty those of the thief made in committing the felony, rewhether or not the officer might have compelled the fuses to apply his foot to the track, and is then forced prisoner to put his foot in the tracks if he had per- to do it, the result of the comparison is a fact and sisted in refusing to do so." The point thus decided equally competent as evidence. The principle of the was the main one, and the decision of which is as- two cases is the same, whatever difference there may sailed. Is the decision not correct and fully supported be in the conclusiveness of the two species of evidence. by the weight of authority? Let us see.
The weight and effect of the testimony is for the jury Starkie on Evidence, Part IV, p. 50, says: " Where a and not the court. I have not seen the Tennessee fact has been ascertained in consequence of an admis- case, referred to by Mr. Judd, but I think it entirely sion improperly obtained, it may still be proved, for safe to say, that the decision in The State v. Graham is the fact cannot have been affected by the influence supported by the weight of authority. used; therefore, upon an indictment for receiving This sort of evidence, though treated under the stolen goods, where, in consequence of the confession head of “admissions,” or “confessions," in the books, which had been unduly obtained, the stolen property | belongs to neither, but, as was said by the court, it is bad been found, concealed between the sackings of properly called by tbe civilians “real evidence.” In the prisoner's bed, it was held by the twelve judges, placing his foot in the tracks, the accused neither “adthat the fact of the finding of the stolen property in mits coufesses "any thing. The foot may not fit the prisoner's custody was clearly evidence. But the track, and that fact would be conclusive in his favor. in such cases nothing is to be left to the jury but the It may fit, but that would be no admission or coufesfact of the prisoner's having directed the witness sion, for it may be shown that others had feet of the where to find the goods, and his finding them, but not same size, which would weaken the force of the evithe acknowledgment."
dence; or that another actually made the track, or So Mr. Greenleaf, in his work on Evidence, Vol. I, s that he was elsewhere at the time of the theft, which 231, says:
* The object of all the care, which, as we have would entirely destroy the weight of the evidence now seen, is taken to exclude confessions which were from “ resemblance." In State v. Garrett, 71 N. C. 85 not voluntary, is to exclude testimony not probably the prisoner was indicted for the murder of a child by true. But where, in consequence of the information ob- burning. At the coroner's inquest, she alleged that tained from the prisoner, the property stolen, or the the child's clothing caught fire, and that in trying to instrument of the crime, or the bloody clothes of the extinguish it, she, the prisoner, had her hand burnt, person murdered, or any other material fact is discov- which she then had wrapped up. She was forced to ered, it is competent to show that such discovery was strip the covering from her hand, when it appeared to made conformably to the information given by the a physician to exhibit no evidence of a burn. The prisoner. The statement as to his knowledge of the testimony as to the appearance of the hand was held place where the property or other evidence was to be to be competent. It is true that the device of the acfound, being thus confirmed by the fact, is proved to cused was a fraud, but that could not be discovered until be true and not to have been fabricated in consequence the force had been applied. The result was the eviof any inducement.” See, also, to the same effect, 1'dence, no difference how brought about. Il a witness
says he can identify the accused only by a scar on his Messrs. A. L. Bancroft & Co., of San Francisco, body, which is concealed by his clothing, doubtless it have initiated an enterprise which, if it shall prove would be competent for him to testify to having seen successful, will make the library of the future literally the scar on the prisoner, whether he made the inspec- "infinite riches in little room." They propose to tion by consent, force or fraud. Whether the court, publish in about 75 volumes all important cases deou the trial, could compel the prisoner to strip and cided by the various courts of this country prior to thus establish or disprove the fact, as the court re- 1869, when the “ American Reports” began. The marked in State v. Graham, “it is unnecessary to say." | editorial control of these reports - which are to be The most remarkable cases of modern times, if not of called the “ American Decisions " -- is to be in the all times, upon the question of identity, were the re- hands of Mr. John Proffatt, who has achieved some cent Tichborne trials. Every species of evidence which reputation as a legal writer, and whose experience will human ingenuity could devise, to prove or disprove doubtless enable him to discharge the difficult duties an identity, was there resorted to, and I think all that of the position with skill and judgment. We heartily is claimed in The State v. Graham was fully admitted wish the enterprise success. or adjudged, and more. The rules of evidence applicable to questions of
The new judicature act, which changes the kys“identity," "legitimacy,” etc., necessarily allow much tem of practice and the organization of the courts, latitude in their application. The State v. Graham is
went into effect in Ireland on the 1st inst.
-The an example as to identity, illustrating the principles Oneida County Bar Association met on the 21st of evidence, as laid down by Starkie and Greenleaf,
ult. to consider the new Code, but came to no consupra, and Warlick v. White, 76 N. C. 175, is an inter
clusion as to whether it ought to be repealed or reesting case upon the question of “legitimacy."
tained.-Judge Van Hoesen, of New York, thinks A word as to The State v. Neely, 74 N. C., which is $2.000 a year too much for the fees of a commitalso severely commented on. That case was decided
tee of a lunatic, whose services consist in spendby a divided court, three to two, and while I do not
ing an hour a month in visiting the lunatic, subconcur in the correctness of the decision, we must not. scribing for a paper and ordering an occasional suit in justice, lose sight of the single question decided,
of ready-made clothes. He so held in Matter of nor must we confound the decision with the some
Brinkerhoff, decided on the 26th ult. - A right to a what heated dicta of the judge, arguendo. The pris
seat in the New York Cotton Exchange was held to be oner was indicted for an assault with intent to com
property in the case of Ritterband, receiver, etc., v. mit rape, and the single question was whether there Boggett, decided on the 26th ult. in the New York Suwas any evidence of the intent. In North Carolina,
perior Court, and an assignment of it to a proper perany legal evidence, however slight, tending to support son, desiring to purchase it from a receiver of the the charge in the indictment, cannot be withheld from
property of its owner, ordered. the jury, the weight and effect of it being the inde
The appointment of Halbert E. Paine, of Wisconsin, pendent province of the jury to pass upon. While I
to be Judge of the Court of Claims in place of Judge do not think there was any evidence of the intent V. Peck, resigned, is said to be fully determined upon. charged, it yet must be admitted that the line be
Mr. Paine was born in Ohio in 1826, and was graduated tween what is no evidence and what is slight evi- from the Western Reserve College. He was admitted dence of a fact, is so dim and shadowy, that some- to the bar in 1818. He served in the Union army times the coolest and most discriminating judgment during the war, and was breveted a major-general in of the judge fails to determine the question to the
1865. He was a member of the Thirty-ninth, Fortieth satisfaction of all minds; and accordingly the decis
and Forty-first Congresses.—The man who doesn't ions are not uniform as to the line of demarkation be- squander any money hiring lawyers has turned up in tween what is admissible and what is not admissible.
Sonoma county, Cal., where he recently recorded a Where the question is doubtful, the temperament of deed to $15,000 worth of land in which one of the the court or its feeling, often, even imperceptibly, de
boundaries is described as “being between the wheat termines the question. It might bave been so in this
and corn now growing on said land.” case, but the antecedents of the majority of the court making the decision preclude such a supposition.
In the case of Hancock v. Rand, recently decided in December 26, 1877.
B. New York by Horatio F. Averill, Esq., referee, an in
teresting question in relation to the law governing innNOTES.
keepers was involved. General Hancock engaged HE necrology of the past year includes the names rooms for himself and family at the St. Cloud Hotel,
of an unusual number of lawyers and jurists. kept by defendants, at a specified price, which was less Among the more prominent are the names of Emory than that charged to transient guests. During his ocWashburn, the author and teacher; Chief-Justice cupancy he and his family lost certain articles from Shipley, of Maine; David A. Smalley, for eighteentheir rooms, but there was no gross negligence shown years United States District Judge of Vermont; Ed- on the part of defendants. The referee held that ward Kent, formerly a Justice of the Supreme Court owir to the special agreement above mentioned Genof Maine; Enoch H. Rosekrans, once a Judge of the eral Hancock and his family were not the guests of the Supreme Court of New York; Chief-Justice Moses, of defendants, but only boarders, and therefore defendSouth Carolina; Isaac Ames, Judge of Probate of
ants were not liable for losses sustained. 2 Pars, on Suffolk county, Mass.; Joseph T. Platt, of the Phila
Cont. 151, 153; 1 id. 028; Stewart v. McCready, 24 How.
Pr. 62; Sevard v. Seymour, Anth. Law Stud. 51; Mowdelphia Court of Common Pleas; Chief Justice Dra- ers v. Feathers, 6 Laus. 115; Thompson v. Lacey, 3 B. per, of the Province of Ontario; Judge Rawson, of the
& A. 283; Parkhurst v. Foster, 1 Salk. 387; Dansey v. Supreme Court of New York, and Professor Tyler.
Rich, % Ellis & Bl. 144; King v. Ives, 7 C. & P. 213;
Wintermute v. Clark, 5 Sandf. 247; Cromwell v. Stevens, Among the names from England are those of Lord
3 Abb. .(N. S.) 34; Bennett v. Ditson, 6 l'erm, 273; Justice Mellish and Mr. Samuel Warreu.
Manning v. Wells, 9 Thomp. 746.
ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.
Communications on business matters should be addressed to the publishers.
Wainwright, the English murderer, who was convicted a couple of years ago, was about to eulogize his counsel in his remarks previous to receiving sentence, the court checked him, saying that it was neither time nor place for that, and bade him confine himself to the objections he might have to the passing of sentence. The convicted offender is treated with more consideration here than in England, and it is fortunate for the courts that a Dr. Lambert does not often appear before them.
The Albany Law Journal.
ALBANY, JANUARY 12, 1878.
The law of negligence, as developed by the A SOMEWHAT remarkable scene was witnessed courts, is full of remarkable rules and doctrines,
in the New York Court of Oyer and Terminer and these rules and doctrines become still more relast week. Dr. Lambert, president of the notorious markable when they are the blended product of the American Popular Life Insurance Company, wlio
law of negligence and that of master and servant. had been convicted of swearing to a false report of
The House of Lords has, in the recent decision of the condition of the company, was called up for
Jackson v. Metropolitan Railway, at least unsettled sentence and asked the ordinary question if he had
the popular confidence in the justice of some parts any thing to say why sentence should not be pro
of this law. The plaintiff in this case was a passennounced. He thereupon unrolled a huge parcel ger on defendant's line, which is the London underof manuscript, and for two hours harangued the ground railway. By a by-law of defendant, passencourt and the people assembled upon various sub
gers are not allowed to enter any compartment of a jects relevant and irrelevant to the inquiry made.
train in which the seats are all occupied. At a station He eulogized his counsel, denounced those opposed
where the train upon which plaintiff was, stopped, to him, complimented the court, and of course as- an attempt was made by persons to get into the serted that he was innocent of the crime of which compartment where plaintiff was, which was full. he had been convicted. How thoroughly he was Plaintiff put up his hand to prevent the intrusion. imbued with the idea of his own rectitude is indi- At the same time a porter in the employ of defendcated by this language: “Instead of standing here ant, in preparing the train to start, violently shut condemned," said he, “I should be commended by to the door of the compartment, which caught and the policy-holders and stockholders and the public, severely injured plaintiff's thumb. In this action and to-day it should be the pleasant duty of your
for the injury the trial court held that there was Honor to invite me to sit at your right hand instead evidence of negligence for the jury, who found a of being called to pass an unpleasant sentence; por verdict for the plaintiff. A rule nisi was obtained, do I doubt that such would be your Honor's own calling upon plaintiff to show cause why this verdict opinion.” He, however, intimated that the sixty should not be set aside on the ground that there was other insurance presidents with which New York no evidence of negligence. The Common Pleas city is blessed had enriched themselves dishonestly, Division discharged this rule, and this decision was which indicates that he does not believe that insur- allowed to stand by the Court of Appeal, which was ance business in general is conducted upon princi- divided. The House of Lords reversed the judgples of integrity. The court, in reference to his re- ment of the courts below, holding that there was no marks, said that it was impossible to determine negligence in shutting the door, saying that it was therefrom whether the prisoner or his jury was on necessary that it should be shut by the porter; "and trial. The charges made were answered completely as the train was on the point of passing into a tunand in detail by the court, and a sentence of five nel, he could not shut it otherwise than quickly, or years at hard labor in the State prison imposed. It in this sense violently.” Lord Cairns, who delivered is somewhat surprising that the prisoner should the judgment of the House of Lords, says that it is have been given such latitude, but the importance impossible to lay down any rule as to negligence in of the case, the previous high standing of the crim- such cases, except“that, from any given state of facts, inal and the present public feeling against the dis- the judge must say whether negligence can legitihonesty of insurance officials induced Judge Brady mately be inferred, and the jury whether it ought to to be as forbearing as possible in the matter. We be inferred.” The London papers are not satisfied trust, however, that his action will not be taken as with the decision of the House of Lords, though the a precedent. If it should be, the speech of the pris- Law Times thinks it sustainable upon the principle oner on sentence will become as important an event that plaintiff, in endeavoring to prevent the intrusion in the administration of penal justice as the speech of passengers into his compartment, was a volunteer at the gallows used to be in the days of public exe- undertaking to perform the duty of one of defendcutions, and about as instructive and useful. When ant's servants, and he could not, as such, recover for an injury resulting from the negligence of any mortgage, such recorded mortgage in the hands of of such servants. He, however, would not be a such purchaser or of his assigns shall have priority volunteer within Wright v. London & N. W. Ry. Co., over such unrecorded mortgage, notwithstanding L. R., 10 Q. B. 252, and we think the decision, if the mortgagee in such recorded mortgage had, at not sustainable upon the ground put by the Lord the time of receiving the same, notice of the unreChancellor, is not so upon any ground.
corded mortgage. Bills to amend the excise law,
the act in relation to the assignment of the estates The bill of Senator Davis for the establishment of of debtors for the benefit of creditors, and the laws a Federal Court of Appeals will remedy many of the in relation to savings banks, were also introduced. evils now connected with the administration of jus- In the Assembly bills were brought forward to retice in the United States courts. The new appellate peal the act creating a board of town auditors; to court will be a very great improvement upon the one amend the act relating to the Court of Arbitration that now exists, and will serve for many years at
in New York; to amend section 1088 of the new least as an effectual check to the overcrowding of Code; to repeal the act to establish specie payments the calendar of the Supreme Court. We think, in this State after January 1, 1879, and for the bethowever, that in one or two respects the bill might ter protection of policy-holders of life insurance combe improved. Though an attempt is made to merge panies. The excise law was also under considerathe District and Circuit Courts into one by provid- tion in the Assembly, quite an extended debate ing that a Circuit Court shall be held at the same
having been had in relation to the propriety of time and place as the District, the distinction be- amending it. tween the two courts is retained, and there is to remain the present right of appeal in bankruptcy
The bill in relation to the priority of mortgages proceedings from the District to the Circuit. Why in the hands of a bona fide assignee, above menthe courts are not merged for all purposes we can
tioned, is an attempt to provide a means for evading not understand. There is no provision in the act
the operation of what seems to us a very just provisagainst a judge sitting in review of his own decision of the recording act. If, however, it is thought sions, an omission which we think is a mistake. proper that priority of record should determine priThe rule which prevails in this State has worked so
ority between mortgages, why not have the statute satisfactorily that we cannot see why it is not worthy say so directly? In case the proposed bill should of a trial in the Federal courts. The ten-thousand pass, the holders of such subsequent mortgages as dollar limit upon appeal to the Supreme Court in ordi
are mentioned would one and all assign them to nary cases is proper enough, as is the provision giving bona fide holders without notice, so that the provisthat court power only to review the questions of
ion as to notice, though still remaining in the law, law arising in cases carried there. The additional
would be a dead letter. It would be better to leave judges provided for are needed. The present num
the law as it is, or to make no exception whatever in ber of Circuit and District judges is insufficient for
its operation against subsequent grantees or mortthe work of the courts, as they now exist, and under gagees with notice. the new system there would be a great increase of business in all Federal courts, except the Supreme.
In the case of Re Mitchell, ex parte Sherwin, deSenator Davis very properly does not attempt to
cided by the United States District Court of Massamake any change in the law governing procedure. chusetts, appearing in our present issue, a novel This, indeed, sadly needs amendment, but the pro- question in bankruptcy law is presented. The defession will be satisfied to wait for reform there if
cision of the court that property belonging to the the organization of the courts can be satisfactorily estate of a bankrupt in the hands of assignees is improved during the present session of Congress.
liable to State taxation, and an assessment made
upon the assignees therefor is proper, is so maniThe legislature resumed its sittings on Tuesday who passed upon the question in the first instance
festly just, that it seems strange that the register last. The introduction of bills has already com
should have thought otherwise. menced, the new Code, of course, not being forgotten by those desiring change in our statute law. In the Senate bills were presented designed to amend
NOTES OF CASES. chapter 448 of the Laws of 1876, in relation to the IN Moore v: Jackson, 2 Abb. New Cas. 211, it is exemption of trial jurors, and to annend chapter 449. held that the riparian owner cannot appropriate explaining and regulating the action of the previous any part of a navigable stream which is a public chapter; also a bill providing that whenever any highway by erections or obstructions of a continumortgage of land duly recorded shall be assigned to ous character. A raft of timber continuously a purchaser for a valuable consideration in good moored was held to be a violation of this rule, and faith, and without notice of a prior unrecorded to constitute an illegal encroachment or purpresture.
It is somewhat difficult to determine when a float- was held admissible in evidence as a book of origiing object, such as a craft or boat, constitutes a nal entries. Hill v. Scott, 2 Jones, 169. And in nuisance in a stream. A canal boat permanently England under a statute requiring a will of lands to stationed in a basin was held to be so in Hart v. be in writing, it has been held that a will written Mayor of Albany, 9 Wend. 571. In Hecker v. N. Y. in pencil, instead of ink, would be good. 1 Redf. Balance Dock Co., 13 How. Pr. 549, a floating dock on Wills, $ 17, pl. 2; In re Dyer, 1 Hag. Ecc. 219; in the harbor of New York was held to be a Rhymes v. Clarkson, 1 Phil. 1. In Patterson v. Engnuisance. See, also, 2 Hawk Pl. Cr., ch. 75, $ 11. lish, 21 P. F. Smith, 459, the validity of a will But, in the same case, before another judge (24 signed with a lead pencil was not decided, but it Barb. 225), a floating dock is declared not to be a was referred to, and a strong declaration made nuisance in navigable waters. In Gou v. Carter, 9 against the propriety of writing or signing in that Humph. 369, the Supreme Court of Tennessee declare
The reason given against it is the facility that every obstruction or erection in a stream de- with which the writing may be altered or effaced. clared navigable by law, which injures the naviga- But wben the statute is silent upon the subject, it tion of such stream, is a nuisance. A mere tempo- would scem improper to say that the mere fact that rary occupation of a part of a highway by persons a lead pencil was used, would make the will invalid. engaged in building, or in receiving or delivering A writing with a lead pencil is acknowledged as a goods from stores or the like, is allowed from the writing by the authorities, and fulfills the requirenecessity of the case, but a systematic and con- ment of the statute. See, also, Main v. Ryder, 34 tinued encroachment on a highway, though for the Leg. Int. 372. purpose of carrying on a lawful business, is unjustifiable. In People v. Cunningham, 1 Den. 524, dis- The doctrine of ancient lights is generally untillers delivered their slops daily in the street to derstood not to be adopted in this country, and it purchasers, and the street was obstructed by carts certainly is not as between adjoining owners who and teams resorting thither for the slops, and wait- are strangers to each other. It was, however, ing to load. This was decided to be a nuisance. claimed in Shipman v. Beers, 2 Abb. New. Cas. 435, The general principle is settled that any obstruction that if both proprietors obtain their title from a of a public highway for an unreasonable length of common source, the same grantor having conveyed time, however lawful is the business which is sought the tenement with the windows to one, and the to be prosecuted, is indictable as a public nuisance, ground overlooked to another, the windows cannot although room might still be left for the accommo- be obstructed. The court held adversely to the dation of the public. See Davis v. Mayor of New claim, saying that while it had some support in the York. 14 N. Y. 525; Fowler v. Saunders, Cro. dicta of Selden, J., in Lampman v. Milks, 21 N. James, 446; The King v. Russell, 6 East, 427; Rex Y. 505, and was favored by Tyler and Washburn in v. Carlisle, 6 Carr. & Payne, 636; Rex v. Cross, 3 their treatises, the weight of authority in this State Camp. 226; Rex r. Jones, id. 230; The King v. is the other way. See Myers v. Gemmel, 10 Barb. Moore, 3 Barn. & Adolph. 184; Commonwealth v. 537, where it was held that a landlord might lawPassmore, 1 S. & R. 219; The King v. Ward, 4 Ad. fully darken or stop the windows by any erection on & El. 384.
the other lot; that such an act was not in deroga
tion of his own grant, and that he could not be In Myers v. Vanderbilt, recently decided by the restrained by injunction from so doing. And in Supreme Court of Pennsylvania, it is held that Palmer v. Wetmore, 2 Sandf. 316, it was held that a under a statute requiring that “every will shall be landlord who owns a lot adjoining demised premiin writing," a will, written and signed in lead pen- ses, has a right to build thereon, although by so docil, is valid. The general rule undoubtedly is, that ing he obstructs and darkens the windows in the whenever a statute or usage requires a writing, it tenement devised, and that such an act is not an evicmust be made on paper or parchment, but it is not tion. In Doyle v. Lord, 64 N. Y. 439, these cases essentially necessary that it be in ink. It may be were approved, and it was held that the grantee of in pencil. This view is sustained by numerous au- a building and a portion of a lot upon which it stood thorities as applied to contracts generally. Chitty would take no right to the light and air from the on Cont. 72; 2 Pars, on Cont. 290; Joeffry v. Wal- balance of the lot. And in Keats v. Hugo, 115 Mass. ton, 2 Eng. C. L. 385; Geary v. Physic, 5 B. & C. 204, it was held that the grant of an easement of 234; Merritt v. Clasen, 12 Johns. 102; Draper v. light and air is not implied from the grant of a Pattina, 2 Speers, 292; McDowell v. Chambers, 1 house having windows overlooking land retained Strobh. Eq. 347. The same rule applies to prom- by the grantor. See, however, 2 Washb. R. Est. 29, issory notes, Closson v. Stearns, 4 Vt. 11; Partridge 63; United States v. Appleton, 1 Sumn. 501; Cherry 1. Davis, 20 id. 499; Brocon v. Butchers and Drov. v. Stein, 11 Md. 1. Also Maynard v. Esher, 17 Penn. Bk., 6 Hill, 443. So a book account made in pencil St. 222; Collier v. Pierce, 7 Gray, 18.