
    IN RICHMOND SUPERIOR COURT,
    JUNE TERM, 1831.
    Thos. S. Martin, vs. Administrator of I. W. Fyffe.
    
      Attachment. Verdict for plaintiffand motion for new trial.
    
    A merchant’s and shop-keep-evidence to andV<de!iveryaof goods, when it thebooksoffered are of original hancT-writing— that he keeps ted b°°deaün»s with the person thatTe’kept^no 0ieri<:
    Or if he kept a clerk who is
    When books are introduced, they are open to remark from the strictest scrutiny iF" ümrkbe üm i.ast suspicion »f fraud m un'.i r c!c i!ino they vv sil be disn> rded.
   This attachment was sued out during the life of the intes-tale; and has been revived against his administrator. The declaration contains two counts, one upon a promissory note, ^le other for goods, wares, and merchandize, sold and delivered. No evidence was before the jury upon the first count, plaintiff having entirely failed in proving the note, which was denied on oath by defendant. Upon the second count the °nty evidence of sale and delivery offered, was plaintiff’s book of original entries which was objected to by defendant’s coun-seb because at the time the entry was made, which was in plaintiff’s own hand writing, he kept two clerks, both of whom wrote in his books. The objection was overruled, it being in proof that the clerks were dead. A merchant’s and shop-keeper’s books are, by constant practice, received as evidence to prove the sale and delivery of goods, when it is shown that the books offered are of original entry, are in his jlclnc{ writing, that he keens fair books, has had dealings with , , , , . , 7 . , T U'the person charged, and that he kept no clerk. in this case every preliminary proof was made but the last, which could not be made, as m fact the plaintiff did keep clerks. I his sort °f proof should be received and weighed with great caution, as it is an exception from a fundamental and very salu-{ary ruje 0f evidence, that a man shall not be permitted to make testimony for himself: but it is an exception our courts have found it necessary to make, for the cause of truth and justice, and for the relief of those among us, iand they arc not a few.) whose business obliges them to extend credit, but who cannot a fiord to keep clerks. Every guard should be thrown around a cause necessary to secure it from hong pie-judiced by such testimony framed to suit an occasio ; : hence the preliminary proofs always required. Had this plaintiff kept no clerks, his book would have been received without objection : hod the entry been in the hand-writing of one of the clerks, he being dead, the book might unquestionably have been received ; but the entry happens to be in the plaintiff’s own hand writing, and the only persons who may be supposed to have any knowledge of the affair are dead, Upon what principle does the case of the plaintiffs differ from , 1 „ ¡S | i *> nm * r . ,., . , that of one who kept no clerk r 1 hey are hotn alike dependent on their books for proof of sale and delivery, as they contain the only evidence of it. The testimony is only admitted sa any case, as matter of necessity, arising from the want of better: and there is no particular merit in not keeping a clerk, nor particular fault in, making an entry in one’s own books. Whenever books are received they are open to remark from the court, and are subject to the strictest scrutiny of the jury, and if there be the least suspicion of fraud or tin-fair dealing, they will be disregarded. In this case had the clerks been in life, they should have been examined ; but being dead, the only evidence left the plaintiff was his book of original entries, and there can be no danger in extending the exception from the general rule to a case such as this. The principal difficulty that the court finds arises out of the entry itself, which is simply, Bills receivable to merchandize,” and this additional entry, “ Rec’d Isaac W. Fyfife's note for goods sold him this day, at 60 days, for $703,81.” mi *

A genera! deelaraiion for d\ wares and "i.orcimmiize. parcels, V'bad.

- the account sued 011 "'as a s“S,e item charged m ihe hookah us;median-dize,’and aver-r0.b#en planing the daring that the ™¡jJrai'IoVove the sale and de-p'jr.Lwjo.'Id,, t.r.dalthough ofjian-d-,¡rain ,mlJ' un muse prove particular goods.

By our judiciary act, a plaintiff is required, plainly, fully and distinctly, to set forth his cause of action. The count in the declaration here contains but the general allegation, for goods, wares and merchandize sold and delivered, and is without a bill of parcels; which defect would have been fatal if insisted on according to the rule of court, but was waived by the defendant’s consenting to go to trial without demanding it. Yet, though waived, the necessity of proving the particular goods sold was not dispensed with. The entry is too general, of itself, to prove the sale and delivery of any particular goods. From this it cannot be known what one article, among the almost infinite variety of articles classed under the head of merchandize, was sold and delivered to the defendant; nor whether the price is just and reasonable, or unfair and exorbitant. To take the whole case, declaration and proof together, and it is impossible the defendant can be apprized, for what be is sued, or know against what he is to defend. And besides the enüy itsell showed an outstanding security. There was an objection made to any proof wfaat-ever under this count because the attachment was sued out upon the note only. This objection was overruled, it ap-before declaration filed, the attachment had been dissolved by deiendantVgiving special bail, and being in court might well be thus declared against. What effect this may have on. the bail is a distinct question. The court has not changed the opinion it then expressed, but the point is open for argument, should the defendant in the future progress of tiie cause think proper to urge it.

As the court is not satisfied with the verdict for the reasons assigned in reference to the proof derivable from the entry in plaintifi’a book, and believing as it docs that justice requires a new trial ; it is ordered that the verdict be set aside, and a new trial granted.  