Curren against Crawford.
Monday, March 30.
In Error.
THIS case came before the Court on a bill of exceptions to evidence, sealed by the District Court for the city and county of Philadelphia.
. It was an action to recover the value of a quantity of lime sold and delivered by Crawford, the plaintiff below, to Curren. On the trial the plaintiff produced books, which he swore were his books of original entries of goods sold and delivered, and that the entries were made at the times, and by himself. On his cross-examination he stated, that he was present at some of the times when limé was delivered to Curren; that by “ the times f mentioned in his examination in chief, he meant the times when the lime was loaded 7 in the wagons at the lime kiln ; that he was not present at alt the times the wagons were loaded ; that he was some times in Philadelphia, but was not present at all the times the lime , ,. r ’ r was delivered there.
A book of original entries, verified by the oath of the party,is good evidence to prove the sale and delivery of lime? and it is not necessary to fortify the book by the oath of the lime was redelivered. 6 Ifa boo,f appear on mspection or tíon oHbé"*” Party bytIle Court, not to be a book of original enciurunay reJeot “ as competent. If this does not clearly appear, it must be submitted
A certain entry in the book, in these words and figures was then referred to, “II 15 B. Marpol. 7 11 *
60 Themerty Coren.”
, , The plaintiff could not say he was present when the lime mentioned in that entry was loaded, or when it was •ed. On being examined by the Court, he said, he was at home five days out of six, and the lime which he did not see loaded, he generally saw delivered. He was in town one day' in every week. Some of the wagons were his own, and some were his tenants, in his employ during the whole season.
The defendant’s counsel objected to the reading of this entry, but the Court admitted it.
P. A. Browne, for the plaintiff in error.
The practice of permitting a party to prove his own books, was introduced by necessity into this country; in early times few tradesmen kept clerks. It is in contravention of the general principles of evidence, and ought not to be extended to cases in which *4such necessity does not exist. It is confined to two cases, viz. goods sold and delivered where better evidence cannot be procured, and work and labour done; and Courts are extremely careful not to stretch so dangerous a rule beyond thesé limits. A tradesman may prove his own books to charge an original debtor, but not a third person who has guaranteed payment. Poultney v. Ross. He may prove entries made by himself, but not entries made by his daughter, who is dead. Karsper v. Smith. A book of original entries is not evidence to prove the time a vessel lay at a wharf, in order to charge the defendant with wharfage. Wilmer et al. v. Israel. Nor can a receipt for goods, written in a book of original entries, and signed by the person to whom they are delivered, be proved in any other manner than ordinary receipts, notwithstanding a custom to treat such receipts as original entries. Sterrett v. Bull. The reason on which these cases are founded is, that other evidence of a more impartial character might be adduced. In the present case necessity did not require, that the plaintiff’s books should be received in evidence. The lime was received by the carters, who might have been brought forward to prove the delivery of it to the defendant. The evidence is objectionable too on another ground. It does not appear, that the entries were made at the time of delivering the goods, which our law requires. Nor is the Court bound to receive the books as books of original entries, if upon inspection they appear otherwise.
Kilter a, for the defendant in' error.
There are only two objections which can be urged against the evidence offered in this case. 1. That that is not a book of original entries. 2. That the book is fraudulent on the face of it, containing erasures, interlineations, &c. The last objection is not made here. It is not necessary, that the entry should in all cases be made at the time of delivery, because it is impossible for any man to swear, that he remembers being present at the delivery of all the goods charged in his books. Day-books are prima facie evidence, not only of the delivery but of the price of goods,-but not of money lent, or of cash paid. Du*5coign v. Shreppel; though in Rodman v. Hoops, the Court permitted an entry in a .book, made a long time before, to be read to the jury, in support of the presumption of payment of an old promissory note. There is nothing in the present case to exclude the rule. The selling of lime is a very extensive business, in which a great number of persons are employed. It is impossible for the carters to remember the contents of every load, or when and to whom they are delivered. It would, therefore, be highly unreasonable and inconvenient to require them to be brought forward to prove the delivery, when it can be proved as such facts usually are.
The opinion of the Court was delivered by
Duncan J.
The bill of exceptions states the circumstances under which the entry in the book now objected to, was permitted to go to the jury.
Books of original entries, verified by the oath of the part)', and that the entries were made by him, ‘have always been received in evidence in Pennsylvania, from necessity, as business is very often carried on by the principal, and many of our tradesmen do not keep clerks. In the country there would be a stagnation of all credit, if this were not the case. It is superfluous to cite authorities to prove a course of proceeding, so notorious to all conversant in Courts of justice. The same necessity has introduced the same rule in other states. In South Carolina, Foster v. Sinkler, 1 Bay, 40, Spencer v. Andrew, 1 Bay, 119. In Massachusetts, 2 Mass. 221, Cogswell v. Dolkin. In New York, Vosbury v. Thayer, 12 Johns. 461.
-In Sterrett v. Bull, 1 Binn. 237, the entry to be proved by the plaintiff must be an original entry made by himself. It must be an account of the daily transactions of the party, and not in the nature of a receipt book. It must be in a course of dealing between the parties, and the entries made about the time of the transaction. This book and this entry appeared to be of this description. The law fixes no precise instant when the entry should be made. At or near the time of the transaction, they should be made. It is not to be a register of past transactions, but a memorandum of *6transactions as they occur. If the book appear, on investigation, or examination of the party by the Court, not to be such a one, the Court may reject it as incompetent. If this does not clearly appear, it is to be submitted to the jury to decide on. The book here was so submitted; its verity left to the jury. The plaintiff below, after having testified that this was a book of original entries, and that the entry was an original one made by himself, and on his examination by the Court, declared, that he was at home five days out of six, and that the wagons he generally saw, after loading the lime or delivering it, it was not necessary to fortify the book by the oath of the particular carter, to render it evidence. The entry accompanied by the supplementary oath of the party, was properly admitted.
Judgment affirmed.