PEOPLES v. AULT, 125 Md. 698 (1915)

96 A. 398

DAVID PEOPLES vs. DAVID V. AULT.

Court of Appeals of Maryland.
Decided April 16th, 1915.

Decree for accounting: not granted when futile; books destroyed. Witnesses: unsworn testimony; when not admissible. Appeals: remanding for further proceedings under section 38 of Article 5 of the Code.

A decree for an accounting will not be passed when it appears from the evidence that the books containing the information desired are no longer in existence.

Where the bookkeeper, who had made the entries in books whose contents were in issue, was available and could have been produced, but had not been called or examined, his unsworn statement as to the entries is not admissible.

Where the substantial merits of a case will not be determined by either an affirmance or by a reversal of the decree appealed from, the case may be remanded for further proof, as authorized by section 38 of Article 5 of the Code.

Decided April 16th, 1915.

Appeal from the Circuit Court of Baltimore City. (ELLIOTT, J.)

The cause was argued before BOYD, C.J., BRISCOE, BURKE, THOMAS, PATTISON and URNER, JJ.

James McEvoy (with whom were W. Howard Gahan and W.B. Saul on the brief), for the appellant.

J. Kemp Bartlett (with whom were Edgar Allan Poe, L.B. Keene Claggett and R. Howard Bland on the brief), for the appellee.

URNER, J., delivered the opinion of the Court.

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