(dissenting).
I agree that the original refusal to let the defendant explain his schedule was a plain error, and that the explanation later allowed was too meagre; but I cannot agree that either error justifies a reversal of the judgment. The plaintiff’s case was founded upon its books which were shown to be kept in due course and in which no irregularities appeared. They were, however, kept by one, Gack, who was shown to have made some inconsistent statements as to some of the items that entered into the aggregate loss which the plaintiff claimed. This was all that did in any way impeach the books, for the defendant’s testimony amounted to nothing whatever. Gack’s in-consistencies could have been rationally relevant only in two ways: they might have been used to exclude from the plaintiff’s -'loss those items which they touched, or they might have been used to throw general discredit on all Gack’s testimony, including the accuracy of the books on which the case was founded. So -far as they tended to throw doubt upon the items specifically, any explanation of the admission in the schedules would. have been irrelevant, because the admission itself was irrelevant. The verdict was for $187,000 and the aggregate of the supposedly doubtful items was less than $87,000. At most the admission tended to establish an indebtedness of only $100,000 and did not help to meet any infirmities’ in 'Gack’s' testimony concerning any part of the claim in excess of that sum. In theory more can perhaps be said for the admission as tending to overcome any discredit which his inconsistencies may- have ’thrown upon Gack’s testimony in general; but'it seems to me impossible to treat its importance' seriously. To do so we must suppose that, being in doubt, because of his ■ inconsistencies, whether -Gack might not "have fabricated the books, or so kept them that they were unreliáble, the jury laid its doubts by recourse to the admission. I suppose that it.'is' impossible ■ to demonstrate that that could'not have happened; but to me it is fanciful’ to imagine that any jury might have ‘pressed such trivial' circumstances so 'far,' and I; cannot help thinking that in reversing this judgment we are re.verting to .a. disposition .towards the admission of evíderiCé, which a'ppélláte' courts long agó abandofffid'ahd which' Rule 61 now forbids, certainly in the District Courts: ■