Townsend v. Coleman

Hemphill, Ch. J. The restrictions under which books of accounts will be received in evidence, have been heretofore discussed ; and I will not notice the ground previously surveyed. In this case, all the items excluded by the statute of limitations, amounting to more than two hundred and twenty-two dollars, were (with the exception of one) entered by one of the clerks; while those not excluded, and upon which the judgment was given, are in the handwriting of Mr. Coleman, one of the plaintiffs. Three clerks were examined, but neither knew anything of the sale or delivery of these articles, and we are of opinion that their evidence was not sufficient to warrant the judgment. The previous opinion in this cause, (18 Tex. R. 418,) had indicated the propriety, under certain contingencies, of the oath of the plaintiff who had made the entries. The books of merchants who have no clerks, or who have themselves made the entries, are, as generally said in the books to be, at best but weak and dangerous evidence. They are received with great caution, and from necessity, on the presumption that no other proof, in the ordinary course of transactions exists. In several of the States, their admission is regulated by statute; but in this, and others, they are admitted without the authority of statutes. In some of the States, as for instance New York, New Jersey, Illinois, &c., they are admitted without the oath of the plaintiff; but in most of them, this is required; and, it seems, with good reason. The objections to the oath of a party in his own behalf, by the rules of evidence as now established, are to his competency; but, in the nature of things, they exist rather to his credibility than his competency. [821] Such evidence is received every day, with more or less credit, on affidavit; and, in the Probate Courts, every claim for money must be supported by affidavit; and, even, an allowance and approval without such affidavit, is of no force or effect. In the Magistrate’s Court, the parties, under certain restrictions, may testify in support of their own claims; and in the District Courts, one party may, at the instance of the other, be compelled to give testimony in a cause; and his evidence, though in support of, and material to, his own defence, shall not only be received, but shall have such force and efficacy as not to be destroyed, except by written proof, the oaths of two witnesses, or of one, corroborated by strong circumstantial evidence. This rule, whatever be the reasons given for it, must proceed on the assumption, that a party whose conscience is properly purged, can and will say the truth ; and that so great are the probabilities of his truth, that his evidence is not to be questioned on slight grounds. We must conclude, then, as well from the reason of things— from observation and experience—as from the analogies and spirit of the law itself, in cases where no other evidence does, or can, from the character of the transactions, be presumed to exist, that where the entries are made by the merchant or shopkeeper, his books are not admissible in proof of the account, unless supported by his own oath, or unless the fact of the sales and delivery can be proven by the testimony of a clerk. It is proven, in this ease, by the clerks, that the books were regularly kept; that the defendant had dealings with the house; but there is not a tittle of evidence that he had dealings at the particular times in question, or to raise the presumption that these articles were purchased by the defendant. The clerks knew nothing of the transactions. Their evidence, as far as it went, that is as to regularity of books, dealings of the defendant, &c., was proper; but, in addition, there should have been the oath of the plaintiff who had made the sales and could testify to the facts. To admit books of merchants and others, who are still alive and in the State, on proof of their handwriting, would be a dangerous practice. It would open a wide door for false evidence, without the check or punishment of perjury. (Green-leaf on Ev. § 117 et seq.; 1 Cowen & Hill’s Notes, 217; Smith’s Leading Cases, Price v. Earl of Torrington, Vol. 1st, p. 139; 1 Kelley, R 231.) It is to be regretted that this cause must again be remanded. [822] The plaintiffs have been severely punished for their neglect to bring the suit before the statute of limitations had begun to operate; and for the recovery of the remainder, they have encountered much expense and loss of time. But the hardships of particular cases cannot modify the principles of law. The evidence in this cause was not sufficient without the oath of the plaintiff; and it is ordered that judgment be reversed and cause remanded. Reversed and remanded.