Waggeman v. Peters

Caton, C. J. These books of account were not properly admissible for any purpose-. The witness, it is true, says that the plaintiff kept no clerk; but, at the same time, he shows that he did within the legal signification of the term, as used in this class of cases, keep a clerk. The witness himself swears, that he generally made the original entries of the items which appear in these books. The general practice was to set down the items on a slate during the day, and then at night to copy them into the blotter or ledger. The witness says: “ I usually set down the work on the slate, and did a part .of the copying into the blotter.” For every legal purpose, the witness was the plaintiff’s clerk, and was competent to prove the delivery of the items, or the doing of the work. Here the plaintiff had servants in his employ, by whom he should be able to prove his account. If these books were admissible, then are the books of every shopkeeper or merchant admissible, for none can have better means of proving an account than the plaintiff had. If these books were properly admitted, then all books in all cases must hereafter be admitted. Books of account were first admitted as merely circumstantial evidence, to help a plaintiff who did his business himself and without any assistant by whom it was possible for him to prove his account. This was no doubt an innovation upon the common law, but the absolute necessity of the case, and to prevent a wrong to small dealers, who kept no assistants, so commended it, that it seems to have a good footing in the common law courts. But there has been a growing disposition to open the door wider and wider, for books of account as evidence, till now it seems to be thrown down altogether, and the original consideration of necessity, which first introduced them, is altogether lost sight of. But even admitting these books, we are not satisfied with the verdict. The judgment must be reversed, and the cause remanded. Judgment reversed.