Since the entry claims Georgiana paid five-sixths of the price and Jules one-sixth, it may be argued that this statement was in her interest as well as that it was against it. However, we believe the sensible test to determine whether this evidence should have been admitted was suggested by Peaslee, J., many years ago in Hutchins v. Berry, 75 N.H. 416, where he said when speaking of a record kept in a memorandum book, "[Is] this account so lacking in apparent trustworthiness that it must be wholly rejected, or should it be admitted, and the objections to it be used to detract from its weight? The latter course seems the more reasonable.

In other words the principles of that case, in their application here, are not based upon any relationship or privity of the entrant to the parties to the action. It is immaterial whether the entry was made in the course of the entrant's personal business (Hutchins v. Berry, 75 N.H. 416, 419; Lassone v. Railroad, supra) or while engaged in the performance of the business of another (Roberts v. Rice, 69 N.H. 472, 474) so long as such relation is not such as to affect the circumstantial trustworthiness of the statement by demonstrating a positive motive to misrepresent. 3 Wig., Ev., s. 1527.

PETITION, by the owner of the grist-mill to modify the receiver's instructions. The proceeding is a branch of the same litigation heretofore before the court and reported in 71 N.H. 117, 128; 72 N.H. 77, 211; 73 N.H. 310, 603, 611; 74 N.H. 225, 598; 75 N.H. 416. Hearing by the court. It was ordered that the receiver "deliver, under the orders heretofore made, thirty-eight cubic feet of water per second for ten hours of each working day to the grist-mill wheels." The orders in force provide that when the water in the reservoir is drawn down to the four foot point the receiver shall cease drawing water until a sufficient quantity accumulates in the reservoir to run all the mills at dam C for an economical period.

There was no evidentiary basis for the trial judge to determine whether the records were complete or whether the records would be misleading to anyone but Dr. Ketterer. In defense of the trial court's decision to admit Dr. Ketterer's records, the defendant argues that the records satisfied the "apparent trustworthiness" rule of admissibility, first enunciated in Hutchins v. Berry, 75 N.H. 416, 419, 75 A. 650, 653 (1910). In Hutchins the court held that an account of business receipts was admissible due to its "probable truthfulness," although the keeper of the account was unavailable (he had died) to testify at trial.

This finding, coupled with the requirement of necessity due to the death of the declarant, rendered the evidence offered admissible as an exception to the hearsay rule and it was properly admitted by the trial court. Hutchins v. Berry, 75 N.H. 416, 75 A. 650 (1910); Roberts v. Company, 78 N.H. 491, 102 A. 537 (1917); LeBrun v. Railroad, 83 N.H. 293, 298, 142 A. 128 (1928); Gagnon v. Pronovost, 97 N.H. 500, 92 A.2d 904 (1952); Perry v. Parker, 101 N.H. 295, 141 A.2d 883 (1958); O'Haire v. Breton, 102 N.H. 448, 159 A.2d 805 (1960). Exception overruled.

McCormick, Evidence (1954) p. 633. This basic approach was set forth in another connection in Gagnon v. Pronovost, 97 N.H. 500, 503: "However, we believe the sensible test to determine whether this evidence should have been admitted was suggested by Peaslee, J., many years ago in Hutchins v. Berry, 75 N.H. 416, where he said when speaking of a record kept in a memorandum book, `[Is] this account so lacking in apparent trustworthiness that it must be wholly rejected, or should it be admitted, and the objections to it be used to detract from its weight? The latter course seems the more reasonable.

3 Wig. Ev. §§ 1522, 1527; Welsh v. Barrett, 15 Mass. 380, 386; Nicholls v. Webb, 8 Wheat. 326, 5 L.Ed. 628; Bridgewater v. Roxbury, 54 Conn. [213] 217, 6 A. 415; Abel v. Fitch, 20 Conn. [90] 96. * * * "Moreover, the regularity of an entry constitutes only one of a variety of circumstances, sanctioned by judicial practice, acceptable as presumptive evidence of the accuracy and truthfulness of the entry, and as a practical substitute for the conventional test of cross-examination. 3 Wig. Ev. §§ 1422, 1522; Roberts v. Claremont Power Co., supra [ 78 N.H. 491] 495, 102 A. 537. See 2 Ill.L.B. 65, 91. While under the American rule there is no requirement that the entry shall have been made in the performance of a duty to another (3 Wig. Ev. § 1524; Chamberlayne, Ev. §§ 2872, 2876; Hutchins v. Berry, supra [ 75 N.H. 416, 75 A. 650])." In Mercer v. Frank Hitch Lumber Co., 173 N.C. 49, 91 S.E. 588, 590, the court said: "It is well understood that written entries or memoranda, shown to have been made by a third person in the regular course of business, when otherwise relevant, may be admitted in evidence on the trial of an issue and as substantive testimony, but in order to their proper reception in this jurisdiction, and unless in strictness a part of the res gestae, it must be made to appear that the person making them, sometimes styled the entrant, is dead at the time of trial or unavailable as a witness; that the entries were made in the line of some duty or custom pursued in the course of entrant's business; that they are cotemporaneous with the act to be proved; and that the entrant had knowledge of the relevant facts which they purport to contain.

The wheel is not mentioned in the deed. Its capacity to discharge water was not made the measure of the rights granted either expressly or by necessary implication (Hutchins v. Berry, 75 N.H. 416, 417). It is important, therefore, only as it was a part of the existing appliances in the mill at the date of the deed. Horne v. Hutchins, 71 N.H. 128, 136; Hutchins v. Berry, 73 N.H. 603, 604. If there were evidence of its discharge, and if the power which it generated could be correlated with the power required to "run and carry" the specified machinery, it would be an important piece of evidence.

The record kept by third parties, whatever its rational probative value, cannot be laid before the jury if a specific rule forbids, or in other words, declares it not to be evidence. Accounts and entries of third parties are in the nature of hearsay, Hutchins v. Berry, 75 N.H. 416, 419, and are necessarily inadmissible unless brought within some exception to the hearsay rule. "The rule which governs the admissibility of entries made by private parties in the ordinary course of their business, with some exceptions, `requires, for the admissibility of the entries, not merely that they shall be contemporaneous with the facts to which they relate, but shall be made by parties having personal knowledge of the facts, and be corroborated by their testimony, if living and accessible, or by proof of their handwriting, if dead, or insane, or beyond the reach of the process or commission of the court.

The opinion in Sugden v. St. Leonards, 1 Law Rep. P.D. 154, favoring the admission of such statements when the testimony of the declarant cannot be obtained, is quoted with approval in Lane v. Hill, 68 N.H. 275, 279. In Roberts v. Rice, 69 N.H. 472, entries made by one whose duty it was to do so were admitted; and in Hutchins v. Berry, 75 N.H. 416, a statement was admitted although there was no duty incumbent on the declarant. The defendant cites no authority for his objection to the admission of the evidence in this case, but relies upon the proposition that hearsay is excluded.