State v. Lewenthall

delivered the opinion of the court.

If the plaintiff had offered in evidence the book of receipts. *592of taxes kept by Moore, and delivered by him to his successor in office, it would have been proper to permit the evidence of the witnesses Cox and Thompson, to aid the jury in considering the voluminous receipts contained in the book; but we have looked in vain for any intimation in the record that the book of receipts itself was offered in evidence. It was in court, but does not appear to have been offered as evidence. It is very clear that, without offering the receipts themselves in evidence, it was not admissible for witnesses to give evidence of what they contained, and of their result. If the receipts were numerous, and of a character to render it difficult for the jury to comprehend them without the aid of the testimony of persons who had carefully examined them, and made schedules and indexes, or other memoranda, of them, it was proper for the court to permit such persons to testify to the result of their examination and the accuracy of their memoranda, after giving full opportunity to the adverse party to examine and test the correctness of such memoranda. Railroad Corporation v. Dana, 1 Gray 83; 1 Greenl. on Ev., sec. 93.

But such testimony is admissible only in connection with the writings themselves, where the}' can be produced, and as an aid to an intelligent comprehension of them by the jury. Because of this error we are compelled to reverse the judgment and remand the cause, but will decide the question made by the writ of error of the plaintiff, viz., whether the county is entitled to thirty per cent per annum damages on the amount of county taxes due and not paid over by the collector, and whether such damages are recoverable without having been specially claimed in the declaration. We answer both questions in the affirmative. Section 1724 etseq. of the Code entitle the county to the damages, and, being a legal incident, they need not be specially declared for, but follow a recovery by the county.

Judgment reversed and cause remanded for a new trial.