Gordon v. Shurtliff
Superior Court of New Hampshire
Assumpsit upon a promissory note, dated October 27, 1827, for the sum of §50, payable to one Samuel Ross, or order, on demand, with interest, and by him endorsed to the plaintiff. Upon the trial it was admitted that said Ross was the plaintiff in interest.
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Assumpsit upon a promissory note, dated October 27, 1827, for the sum of §50, payable to one Samuel Ross, or order, on demand, with interest, and by him endorsed to the plaintiff. Upon the trial it was admitted that said Ross was the plaintiff in interest. The defence was payment, to prove which the defendant offered one Wetherell as a witness, who testified that the defendant, in the fall of 1827, being then a trader in Bath village, held a note against him, on which there was then due about §53, — that, as he was returning from Boston, he met the defendant, in the road near the village, who…
1Opinion of the CourtParker, J.
It is laid down as a general rule, that “ the ‘ mere recital of a fact, that is, the mere oral assertion, or ‘ written entry, by an individual, that a particular fact is true, ‘ cannot be received in evidence.” 1 Stark. Ev. 46. But “ whenever the declaration or entry is itself a fact, and is a ‘ part of the res gestae, the objection ceases.” “ The distinc-1 tion,” says Mr. Starlde, “ between a mere recital, which is ‘ not evidence, and a declaration or entry, which is to be “ considered as a fact in the transaction, and therefore is evi- ‘ dence, frequently occasions much discussion, although…
2Cases cited1 opinion
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