
    Robert Vance surviving partner of Richard Caldwell and Arthur Vance against Francis Feariss.
    S. C. 2 Dall. 217.
    A copy of entries in a day book, where it appears by a deposition annexed, that the original entries were not made when the transactions happened, but many of them Were made some months after, without distinguishing the regular from the irregular entries, and without assigning any reason for this irregularity, cannot be received as evidence.
    Case, non assumpsit and payment.
    The plaintiff to substantiate his claim to 1251I. us. 5d. Dominica currency, offered in evidence the deposition of George Fitzgerald, taken under a commission. He was the clerk of the company in Dominica, and it appeared by his testimony that the original entries in the plaintiff’s daybook (of which copies were subjoined) were not made at the times the transactions happened, but that many of them were made some months afterwards, without distinguishing the regular from the irregular entries. No reasons were assigned in the deposition for the doing thereof, nor did it appear that the clerk knew the facts of his own knowledge, which were stated in the entries.
    On an exception to this testimony, the plaintiff’s counsel alleged as a reason for this mode of keeping the books, that the company feared the books would fall into the possession of the British commander, who would thereby discover that they were carrying on a contraband trade with the subjects of the United States, and would effect a forfeiture of the property.
   Per curiam.

We feel ourselves very liberal in a mercantile case of this nature, to allow almost every possible species of evidence to be given to the jury; but such mischiefs would arise from the testimony offered, that we cannot do otherwise than reject it. Fitzgerald gives no reasons in his answers to the interrogatories, .why such unusual deviations from the mercantile course have been made, nor distinguishes the proper from the improper entries; nor does it appear that he was conusant of the facts. To impute this conduct to a fear of the enemy is mere conjecture unsupported by proof; besides, a variety of dates are stated, with considerable sums carried out to each. No memory could have served to recollect such a multiplicity of transactions, and there must have been unquestionably some original memorandums from which *R221 the same were extracted. * A copy of these memoran-J dums therefore should have accompanied the deposition. Evidence overruled.

Cited in i R., 441, where it was decided that a book made up by transcribing entries made by a journeyman on a slate, some of them being transcribed by the journeyman, and some by the party, some on the same evening, and others several days afterwards, but all within two weeks, is not admissible in evidence as a book of original entries, supported by the oath of the party.

Messrs. Lewis and Tilghman, pro quer.

Messrs. Ingersoll, M’Kean, Heatly and Duncan, pro def.

The plaintiff’s counsel then attempted to supply the proof by other testimony; and after going a considerable length in the cause, it was agreed to refer the matters in dispute to the jury, or any nine of them.  