Churchman v. Smith

The opinion of the court was delivered by Sergeant, J. The errors in this case have been needlessly multiplied and subdivided into a great variety of heads, calculated rather to-confuse and perplex the case than to aid the investigation of it. On the ai'gument here they have been very properly reduced to a few points, which embrace all that is material. Books of entry, supported by the oath of the plaintiff himself, are ' a peculiar species of evidence, not now admitted by the English law, but introduced into usage in this country at an early period, either from the necessity of the case, as we find it stated in our.books, or in analogy to the civil law, by which a man’s own books of account, with the suppletory oath of the merchant, amounts to full proof. The provisions of the civil law on this subject are explained in 3 Bl. Com. 368 and 370; and the statute 7 Jac. l,c. 12, in its preamble and enactments, shows that at one time in England, books of entries were evidence at common law. This statute confines this species of proof to transactions that have happened within one year before action brought, unless between merchant and tradesman in the usual intercourse of trade. It was decided by Holt, C. X, notwithstanding this statute that a shop book was not evidence of itself within the year. Pitman v. Maddox, (Salk. 690.) But whatever may be the origin of the practice here, it has become firmly fixed and settled, as a general rule, that books of entries are evidence to prove goods sold and delivered, or work done. It has, however, always been kept by the courts within prescribed bounds, and various modifications and restrictions imposed, to guard against the abuses which the ex parte acts of a person interested might otherwise lead to. Of these the courts have themselves been the judges before they would permitthe book to go to a jury, and they have considered it as a species of evidence which ought not to be. extended beyond its ancient limits, and that a strict hand is to be kept over it. Thompson v. M'Kelvy, (13 Serg. & Rawle, 127.) In that case, scraps of paper, containing some scribbling or figuring on [152] them, besides the account of sales of the goods, were' rejected. So, where they are not made at or near the time of the transaction, they are inadmissible. Curren v. Crawford, (4 Serg. & Rawle, 5.) They are not admissible to show a collateral fact. Juniata Bank v. Brown, (5 Serg. & Rawle, 226.) These and various other regulations have, from time to time, as the points occured, been adjudged as necessary to keep this sort of evidence within reasonable bounds. In the case before us, the plaintiff’s book of entries has been shown to us on the argument here, and it is obvious that there has been an erasure and alteration of the account against the defendants, and that in a material part; and it is left upon the evidence wholly without explanation. The heading of the account, “ Roberts & Co. Dr.” seems clearly to have been written upon an erasure of some prior heading; and in another entry in the account of May 23d, 1833, the same thing occurs. The heading of the account xs in this case very material; it concerns, indeed, the main point in issue, whether, the defendants were in partnership. A book of entries, manifestly erased and altered in a material point, cannot be considered as entitled to go to the jury as a book of original entries, and ought to be rejected by the court, unless the plaintiff gives an explanation, which does away with the presumption which must exist on its face. To allow such a book to go to a jury would subject this sort of evidence to the danger of great abuse, and tempt dishonest men to commit frauds by altering books, so as to adapt them to circumstances; whereas, such book should be a faithful record of transactions as they occur, and be pure and free from suspicion on its face; or, if altered, some explanation should be required. There may be cases, undoubtedly, where the rule may operate severely; but, on the other hand, it is one which the safety of the community seems to us to require, and one which is necessary, to keep this species of evidence within its proper and accustomed limits. The other objections to the book do not seem to be supported by fhe evidence given. The only entries in the book relating to claims for which receipts wex*e given by the carters, are proved by the plaintiff to have been the two which the court excepted. The other entries ínay consequently have been made from memoranda, by Reid, the clerk, who also acted as carter; and if after delivering the powder himself, he made entries in the book from his memoranda, the book would be evidence. It would also seem inferable from the evidence that these entries were made by Reid on his x'etuxm home, which would be in season. This disposes of the first aird second errors. The thii'd ei’ror is improperly assigned, thex'e being no bill of exceptions. The ninth, eleventh, and twelfth errors are to the chax’go of the court, and we think they are not sustained. It is hardly possible for any court to chax'ge in such language as to comprehend evexy [153] possible point of view in which the case might be put, or to notice every exception to the general rules of the law. If the party wishes1 an explicit answer in relation to any particular point, it ought to be brought to the view of the court directly. Judgment reversed, and a venire facias de novo awarded.