
    [Lancaster,
    May 16, 1825.]
    SUMMERS against M’KIM and another.
    IN ERROR.
    A paper containing an account of carpenters’ work done in the country by the plaintiff for the defendant, with the prices according to the book of rates of the city of Lancaster, unsupported by any proof that the prices of the work done were reasonable, is not evidence.
    A deposition drawn up privately by one of the counsel in the cause, from the mouth of the witness, and afterwards sworn to before a justice, under a rule to take depositions, is not admissible in evidence.
    A deposition taken before a justice, under a rule, ought to be reduced to writing from the mouth of the witness in the presence of the justice.
    Plaintiff called on defendant for a paper, and finding something in it not expected, declined reading it. The defendant is not thereby entitled to give the paper in evidence.
    The defendant cannot give in evidence, an account book kept by him of the plaintiff’s work and labour.
    Writ of error to the Court of Common Pleas of Lancaster county.
    In that court William M,Kim and Martin Armstrong plaintiffs below and defendants in error, brought this action of debt on a book account not exceeding three hundred dollars, against the plaintiff in error Peter Summers, and filed a statement of their demand for work done in the-year 1816: namely, the carpenter work of a house, four hundred and sixty dollars', repairing a house, forty dollars, boring and laying pipes, thirty dollars: and claiming as due to them, after giving the defendant a credit of two hundred and fifty dollars for goods received, the sum of two hundred and eighty dollars, with interest. A verdict and judgment were had in favour of the plaintiffs: and several bills of exceptions were now returned with the record.
    1. On the trial the plaintiffs examined Samuel Armstrong, who proved, that he worked the whole time at the carpenter work of the house: that he supposed an account of the work was kept by the plaintiffs. He supposed both of them kept an account of the work. He thought he had seen an account of the work: his brother had it. This account being neither produced nor any evidence given in relation to it, the defendant then offered to give in evidence a certain paper, purporting to be an admeasurement of the work, and containing particular prices affixed to the same, taken from a book of carpenters’ prices made in the year 1814, by the carpenters in Lancaster, which William M’Kim, one of the plaintiffs, brought from Lancaster, to the men who took the measurement of the house on which the carpenter work was said to be done, in Salisbury township, having proved by Alexander Miller, a carpenter of Lancaster city, that he had compared the prices annexed to the several items of the carpenter work of the house with the book of prices in Lancaster, and that those prices when fixed upon were the common prices of carpenter work in Lancaster in 1814, and also in 1816,, and were reasonable, and that he had not followed the carpenter work in the country; George Egle having proved that he had actually measured the work done by the plaintiffs, and that said paper contained an accurate measurement of the work, with the prices affixed according to the book furnished by the plaintiff, which he brought from Alexander Miller.
    
    To which paper so offered the defendant objected, the court overruled the objection and admitted the evidence, and the defendant excepted.
    2. After the court had charged the jury, the plaintiffs offered to send out with the jury the paper in the bill of exceptions above-mentioned, which being objected to, the court overruled the same, and directed the same to be sent out with the jury, which was done accordingly, to which opinion the defendant excepted.
    8. The plaintiffs having closed, the defendant offered to give in evidence the deposition of George Leech, which being objected to by the plaintiffs, the defendant proved by his own oath that George Leech, who resided with his mother, attended the court as a witness at that time, and that he shortly after moved away; and further proved, by J. Hopkins his counsel, that George Leech (at the time he attended as a witness) was just about to remove from this county to Clearfield■; that he drew up from Leech himself the deposition which he made and afterwards swore to, with an intention to send it up there to have it sworn to: he had not been sworn before he, Mr. Hopkins, drew it, or before it purported on the face of it: that it was in his hand writing and was drawn up in his office. It was taken not long after he drew it up, but he could not say with certainty as to the time. It was drawn exactly according to the witness’s information. The witness was the counsel for the defendant, when he drew it. The objection was still continued and was sustained by the court, and the opinion of the court excepted to.
    The plaintiffs’ witness having proved (as above stated) that he supposed an account of the work was kept by the plaintiffs, he supposed both of them kept an account of the work. He thought he had seen the account; his brother had it; the defendant offered to prove that the plaintiffs, having given notice to the defendant to produce a paper, and being delivered over to the plaintiffs, they offered to read that part of it in the hand writing of William M’Kim, which was objected to, unless the whole paper relating to the business was read ; the court having (on said offer of the plaintiffs) decided, that the whole was to be read and not a part, the plaintiffs then declined reading it; whereupon the defendant on his defence offered to read the whole, which the plaintiffs objected to, they agreeing that the settlement (as they called it) drawn by M’Kim on the 4th of March, should be received, but objecting to the other entries on the paper. The c&urt overruled the offer and their opinion was excepted to by the defendant.
    4. The defendant offered to give in evidence the book account of the defendant, kept by him of the days that were spent by the plaintiffs and their hands in doing the work for which the suit was brought, upon proving the same by the defendant; which being objected to, was overruled and exceptions taken.
    5. The defendant having given in evidence the deposition of Daniel Buckley, tending to show a tender by the defendant to the plaintiffs in Wilmington and Brandywine bank notes, offered to prove that Wilmington and Brandywine notes passed in Salisbury township (where the work was done) and the neighbourhood at par, which being objected to, the court overruled the same, and their opinion was excepted to.
    6. The defendant offered also to prove that William M’ Kim, on the 1st of April, 1817, was indebted to Adam Hoar, two hundred dollars, that he paid it on the 5th oí April, 1817, in Centre and Juniata notes, which were taken at par and passed as such, and that the Juniata notes which he paid was of the same amount as the one paid him by the defendant on the 1st of April, 1817, the plaintiff’s objected to the whole of this offer except that Peter Summers paid William M’Kim a Juniata note; whereupon the court overruled the said offer, exeept so far as the objection admits, to which the defendants excepted.
    
      W. Hopkins and Hopkins, for the plaintiff in error.
    1. An account was given in evidence containing particulars and prices, without any other proof than the prices of carpenters work in Lancaster, which were no way applicable to work done in the country. The man who measured the work was not asked whether in his opinion the work was worth the prices charged. There was not a particle of proof of the value of this work by any person who had seen it. Alexander Miller never saw the work. The evidence went merely to show the Lancaster prices. The best evidence would have been the plaintiffs book of original entries, and that was the proper'kind of proof. Peake’s Evid. 9. 4 Mass. 646. Cutbush v. Gilbert, 4 Serg. & Bawle, 555. 1 Browne’s Rep. 36, 257. Curtis v. Patton, 6 Serg. & Rawle, 136.
    2. The paper ought not to have been taken out by the jury: the testimony of witnesses is not allowed to be taken out with the jury, nor are depositions. A bill with Lancaster prices was mere viva voce evidence reduced to writing. This is a new device to get parol evidence into the jury box and have it taken out by them.
    3. The deposition of George Leech was good evidence. It was no good exception, that it was drawn up by defendant’s counsel before the witness was sworn. When he swore to it subsequently, he adopted it. The practice is common, and the circumstances of the country render it necessary that depositions should be drawn by some other than the justice. The plaintiffs might have attended before the justice and objected to the deposition drawn in this way, and not having done so ought not now to be permitted to object to it. A deposition was drawn up by the defendant’s attorney before it was carried to the magistrate and sworn to, and an objection to it overruled and the deposition admitted in Goodwin v. White, 1 Browne’s Rep. 272.
    On the other point in this bill the case was, that we produced a paper on the call of the plaintiff’s counsel, and they, after inspecting it, declined reading the whole, but were content to read a part. This the court would not permit. On which the defendant offered to read the whole, which the court refused. In this we contend that the court erred; because the rule is, that a party by calling for a paper and examining it, .makes it evidence against him. Farmers and Mechanics’ Bank v. Israel, 6 Serg. & Rawle, 296. Whart. Dig. 499. No. 222, 223. C. C U. S. 1 Johns. 391, 394. Wilkins v. Gillespy, 7 Serg. & Rawle, 14.
    4. The defendant offered his book of entries, showing the number of days the plaintiffs worked. As the plaintiffs would not produce their book, it was reasonable the jury should see ours. It strengthened the probability of the plaintiffs’ being afraid to produce their book. In Peake’s Ev. 9., it is said, that if the original entry in the defendant’s book be withheld, the plaintiff may give in evidence a sworn copy of it.
    5th and 6th bills. These were submitted to the court, the counsel citing 8 Serg. & Rawle,-325.
    
      Park and Buchanan, contra.
    1st bill. We thought it better to produce original disinterested evidence of our claim for building the house and barn than any book of the plaintiffs, if they had one. But the only point arising on this bill is this: We had proved that the work was done, that it was measured, all the particulars being mentioned, and that they were charged at the Lancaster prices, which were reasonable; and the question was, whether the paper of particulars which had been proved should be read to the jury. The evidence of Lancaster prices was certainly some-evidence: the jury were to judge of the weight of it. They cited, Phill. Ev. 168, 195 1 Binn. 234. 1 Yeates, 347. 1 Browne’s Rep. 257, 344. 5 Serg. & Rawle, 404. 12 Johns. 461. .
    2. This point is the same as the first. If the paper was evidence, the jury ought to be permitted to take it out. 5 Binn. 238.
    3. As to the deposition of Leech. An important principle of practice is involved in this exception Can an attorney draw up a deposition before the witness is sworn, and then send it to the justice to have it sworn to? We trust it will be settled that this is a great irregularity, and that such a deposition ought to be suppressed. The deposition should be taken by the justice, from the mouth of the witness, in his own words In chancery, a deposs tion drawn up by counsel before the witness went before the commissioners, was suppressed. 1 Hai'r. Ch. 360.
    
    The paper-which we called for, and on inspection declined reading, was not evidence for the adverse party. If a party calling for papers waives reading them in evidence, the party producing the papers cannot read them. Blight v. Ashley. 1 Peters, 15, 81. And the opinion of Gibson, J., in Withers v. Gillespy, 7 Serg. & Rawle, 14, is to the same effect: and he there expresses a doubt, whether calling for a paper makes it evidence, though the party calling for it inspects it, and then declines reading it, citing the opinion of Spencer, J. 1 Johns. 394.
    
    The court relieved the counsel from arguing the 4th, 5th, and 6th bills of exceptions.
   The opinion of the court was delivered by

Tilghman, C. J.

This is an action brought by M‘Kim and Armstrong against Peter Summers for carpenters’ work done by the plaintiffs for the defendant, in a house in the county of Lancaster. Several bills of exception were taken by the defendant’s counsel, to evidence offered by the plaintiffs, on the trial in the Court of Common Pleas, and on these bills the cause is now before us.

The first exception was to a paper offered by the plaintiffs, containing an account of the particulars of their work, with the measurement of the same, and the price of each particular. ' It was proved by George Engle, that he measured the work, and set down the price according to a book of rates established by the corporation of the city of Lancaster. And it was proved also, by Alexander Miller, that in his opinion, the price fixed by the book of rates was reasonable. But there are insuperable objections to this evidence. The book of rates was, in itself, no evidence; because the corporation of Lancaster had no authority to regulate the prices of work. And even supposing these prices propér, in the city, they might not be proper for work done in the country; Alexander Miller did indeed swear, that he thought the prices reasonable. But he never saw the work done by the plaintiffs, and therefore could be no judge of the reasonableness of the Lancaster prices, applied to that work. And as to George Engle, the measurer, he did not say whether he thought the prices reasonable or not, nor does it appear that he was supposed to be a judge of such matters: so that if the paper offered by the plaintiffs had gone to the jury, it would be unsupported by the oath of any person, proving the prices charged for the work done by the plaintiffs to be reasonable. I am of opinion, therefore, that it ought not to have been admitted.

The second exception must follow the fate of the first. If the paper was not evidence, it was, of course, not proper that the jury should take it out with them.

The third bill of exceptions contains two distinct points. The first point is on the admissibility of the deposition of George Leech. Several exceptions were made to this evidence, but there was one which was decisive; and as it involves a principle of great importance in practice, I am glad that an opportunity is offered to the court of settling it. This deposition was taken under a rule of court before a justice of the peace of Clearfield county, but it was drawn up in the city of Lancaster from the mouth of the witness, by Mr. Hopkins, counsel for the defendant; and then sent to Clearfield county, and sworn to there. Now, although the character of the counsel, in the present instance, puts him above all suspicion of unfair dealing, yet it would be a practice of mosf dangerous tendency, if depositions so taken, were to be admitted as evidence. The counsel of the party producing the witness, is the last person who should be permitted to draw the deposition, because he will naturally be disposed to favour his client, and it is very easy for an artful man, to make use'of such expressions as may give a turn to the testimony, very different from what the witness intended. I know that depositions are sometimes taken in this manner by consent of parties; and when the counsel on both sides are present, the danger is not so great. But, in the present case, there was no consent, nor was the counsel of the plaintiffs present. The rule of court is, that the deposition shall be taken before a justice. It ought therefore to be reduced to writing, from the mouth of the witness, in the presence of the justice, though it need not be drawn by him. And in case of difference of opinion, in taking down the words of the witness, the justice should decide. In chancery, if the counsel of one of the parties draws the deposition, before the witness goes before the commissioners, it will not be permitted to be read in evidence. 1 Harr. Ch. 360. This certainly is a good rule. The taking of testimony by deposition is, at best, but a very imperfect way of arriving at the truth. Every precaution should therefore be taken, to guard against abuses. It is very clear to me, that the mode in which the deposition of George Leech was taken is subject to great abuse, and should be put down at once. I am of opinion, therefore, that it was very properly rejected.

The second point in the third bill of exceptions is as follows: The plaintiffs called for a certain paper in the possession of the defendant, which was produced. The plaintiffs’ counsel inspected it, and finding something more in it than they expected, they asked permission to read a part of it in evidence. This was objected to by the defendant, and refused by the court, on which the plaintiff’s counsel declined reading any part. The defendants’ counsel then insisted, that the plaintiff, by calling for the paper and inspecting it, had made the whole of it evidence, and'offered to read it. To this the counsel for the plaintiffs objected, and the court sustained the objection, and refused the evidence. On this subject the law does not seem to be settled. It has been sometimes said, that the party who calls for papers in the possession of his. adversary, and inspects them when produced, makes them evidence, and cannot object to their being read. Bdt the adoption of this as a general rule may be attended with great inconvenience, and sometimes produce great injustice. One may know that his adversary has a paper in his possession, by which a certain material fact may be established. He therefore calls for it. But on inspection, he finds that an addition has been made to the paper, containing other matters very injurious to him. There seems no reason why he should be compelled to admit the whole as evidence. If he declines reading any part, the party producing it is left just as he was before it was produced. In the case of Kenny v. Vanhorne and Clarkson, 1 Johns. 396, Spenceh, J., who delivered the opinion of the court, expressed great doubt whether the inspection of the paper called for made it evidence, against the consent of him who called for it; and remarked, that the calling for a paper resembled a bill in chancery for a discovery, in whieh the answer of the respondent was not evidence for himself. And in Withers v. Gillespy, 7 Serg. & Rawle, 14, it was held, that the calling for the adversary’s book of accounts, did not make the whole book evidence, but only such parts of it as had a relation to the part which was read. In the present instance, it appears that the paper produced by the defendant, on the call of the plaintiffs, contained something which they had no reason to expect, and whieh could not have been given in evidence by the defendant. In such ease, without laying down any general rule, I think it most conducive to justice to permit the plaintiffs to waive the reading of it, and leave the defendant to make such use of it as he law-' fully may, without regard to the call which was made on him. There was no error therefore in the opinion of the Court of Common Pleas.

The fourth exception was to the rejection of the defendant’s book of entries, offered in evidence by himself. This book contained an account kept by the defendant of the number of days the plaintiffs worked for him. Very little need be said on this point. There was not even a plausible pretence for this evidence. It was not the defendant’s business to keep an account for the plaintiffs.. He might do it for his own satisfaction, but not for the purpose of fabricating evidence for himself. .The reason for admitting the original book of entries of a man who keeps an account of goods sold by himself, or work done by him, in the usual course of his business, is founded on a principle altogether different. I am of opinion that the evidence was properly rejected.

The fifth and sixth bills of exceptions have nothing in them, and I understood were abandoned on the argument. The evidence offered by the defendant, and mentioned in those two bills, was not relevant. It was of no importance to the issues on trial, what was the value of Wilmington and Brandywine batik notes, or whether the plaintiffs paid to other persons notes of the Centre and Juniata banks for a debt which they owed, or what was the value of such notes.

I have now gone through all the exceptions. The first only has been supported. In all other respects the decision of the Court of Common Pleas was correct. For the error in the first bill of exceptions, the judgment should be reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  