
    Thomas and Seth Foster against Sinkler.
    
      book of “'erf tries of a merchant or shopkeeper, is to go to a the piamtiff’s siveanng to •where one of the copart-ners, -«-ho made the entries, is out the*other co! swear'to™iS in^he"'books'
    These entries are pri-ma facie evidence of a delivery.
    
    THIS was an action of assumpsit, for goods sold and delivered, to the amount of 23/. sterling. The entries ... m the original waste-book were in the hand-writing of Seth Foster, one of the co-partners at the time they were ma<le, who kept the books, and who had, before the commencement of this suit, removed to Virginia, where he had settled and then resided. The plaintiffs took an interlocutory order for judgment by default, and upon executing the . - . , , . writ of equity, Ihomas ioster was produced as a witness t0 prove the books, when
    
      Parker, for the defendant,
    took an exception to the ad-missibility testimony, on several grounds : first, Be. cause the book itself was no evidence, being barred by the statute of 7 Jas. I. c. 12. which was ox force in this state. Secondly, That the evidence of Thomas Foster, was not the highest kind of evidence which the case admitted of. And thirdly, That the entry itself was defective, as no mention was made in it of the person to whom the goods were delivered.
    
      Bay, for the plaintiff,
    said, that these exceptions were new and unusual. It had been the uniform practice of the courts of justice in this country, for many years past, to admit such testimony, and he had never heard it called in. question before. As the objections, however, had been taken, it was necessary they should be fully and satisfactorily answered; more particularly as the mercantile and planting interests were deeply interested in the determination of the question ; and upon this
    
      The Court ordered the case to lay over till the next term for argument, without prejudice to either party.
    The case, afterwards, to wit, on the 9th of February, 1787, came on to be argued at the adjourned court, before Pendleton, Burke, and Heyward, Justices, when
    
      Parker renewed his objections, and insisted, that the statute of James expressly prohibited the offering, or giving in evidence, any merchant or tradesman’s books, unless it be within one year after the goods sold, or work done. The account here is of several years standing; and, even within the year, it did not alter the common law, with regard to the nature of the proof necessary to be offered in support of the entries, which requires that the proof must be made by some clerk or indifferent person, and not by the suppletory oath oí the plaintiff himself, so as to be a witness in his own cause. With respect to the usage or custom which had prevailed in this country, of suffering books of accounts to be offered in evidence, after the expiration of one year, upon the party himself coming in and swearing to the entries ; it was an erroneous one, contrary to the letter and spirit of the statute of James, which had never been repealed by any express act of assembly, in South-Caro-Una. Granting that the custom existed, it might vary in some cases the common law, but it surely could not operate as a repeal to a positive law.
    2. He next argued, that even if this kind of evidence is admissible, for a party to come in and prove his own books, yet Thomas Foster, who was offered to be sworn, was .not tlie highest evidence the case would admit of, he knowing nothing of the contract. 1’he copartner who made the en» tr*es ought to be produced. He had voluntarily left the country, and settled in another state, and had thereby deprived the copartnership of the benefit of his tesimony, for it could not be supplied by any other means, ns long as he was alive. He admitted there were cases in the books, where proof of the hand-writing of a clerk, who made the e’ntries in a tradesman’s book, was allowed as good evidence ; because the act of God had deprived the party of his testimony, and the next best evidence from the necessity of the case was resorted to. But in no case, where the witness tvas alive, and might be procured, can such kind of testimony be regularly given.
    3. With regard to his last ground, he said, it was very obvious that there was a great defect in the entries themselves, in not specifying to -whom each parcel of goods was delivered, as the custotn of the old merchante (he said) in Carolina had been ; and the more especially too, as the practice and indulgence of our court, had been to admit the book itself as chief evidence, on the suppletory oath of a party himself. This custom of the old merchants arose out of the local circumstances of this country, which were very different at that time (1721) from what they were in England. There, a clerk could always be resorted to as a witness, to prove the delivery, or, in case of his death, proof of his handwriting was prima facie evidence of it; here, shop-keepers and tradesmen did not keep clerks. Most of them kept their own books, and therefore it was more incumbent on them to mention the names of the persons to whom the goods were delivered, in order to guard against impositions and frauds. For otherwise, it would be much in the power of a dishonest tradesman or shop-keeper to impose on a customer, by making entries of goods, or work or labour, which had never been delivered or performed. And by the practice and indulgence of our courts, he meant to distinguish it from the law of the land. It was not, he contended, a part of the common laxo of the land, nor is it the statute law, nor the law of merchants. It is only a rule of prac» lice of the courts, which may be adhered to, or relaxed, at pleasure. The reason given in Trotfs collection of the laws of this state, does not exist at the present day, for the merchants aix overstocked with clerks, and, cessante ratione cessat ipsa lex.
    
    
      Bay, contra.
    
    Although the statute of 7 James I. chap. 12. is to be found in the list of English statutes, extended to (the then px-ovince of) South-Carolina, in the year 1712, yet it is very doubtful whether it ever went into operation ; or if it did, it must have gone veiy soon afterwards into disuse, or have become obsolete. For the county and precinct court act, was passed only nine years after the act extending the British statutes in 1721, and the tenth clause of this latter act expressly recognises, “ That it had been before “ allowedfor laxo in the then province, that books of account “ shall be allowed for evidence, the plaintiff sxvearing to the cí same; by reason that the merchants and shop-keepers in “ South-Carolina, had not an opportunity of getting appren-w tices and servants, to deliver out their goods and keep “ their hooks, as the merchants and shop-keepers in Great “ Britain had.” This clause is declaratory of what the law was, previous to the passing of the county and precinct court act, in 1721 ; and nine years is a very short period to establish a custom so firmly, as to become an acknowledged paitof the law of the land. From whence it is highly- presumable, that notwithstanding the statute of James was extended to South-Carolina, yet it was found inapplicable to the then situation of the country, for the reasons mentioned in that clause, and consequently never went into operation. If it had been considered as of foxxe in 1721, the legislature would most certainly have repealed it expressly, instead of passing a clause declaratory of the law, in opposition to it. If, however, it should be considered, that this statute was of foxxe down to 1721, yet the foregoing clause in the county and precinct court act virtually repealed it, by declaring that to be the law, which contradicted it. And this law has been the acknoivledged law of the land down to the present day, which is upwards of 60 years. j-Jo-w lone; it was in use before is uncertain. It seems to t have been a principle borrowed from the civil law, (which admitted books of account, with the suppletory oath of the merchant, at all times to be good evidence, 3 Blue. 369.) and very early adopted in this country as part of the law of the land.' The courts of justice have been uniformly governed by this principle ; and even if it were an error originally, it has been so long in use, that the maxim communis error facit jus\ will well apply. And it is much safer to adhere to this custom, as part of the law of the land, than to set afloat and unravel all the decisions heretofore made on the subject. .
    2, In reply to the arguments offered in support of the second objection, he observed and argued, that the act of any one copartner of a house, on behalf of the copartnership, is-the act of the company; and this is good in all cases, as well for as against them. They are in law regard-; ed and known as one person.. Whatever the whole might do, either for or against a copartnership in the way of trade, any one may lawfully do. Merchants, for the benefit and extension of trade, are highly favoured in all countries, for which reason a peculiar code has been adopted for their convenience, called the law of merchants, which gives them these privileges. There is no kind of. question, but that if Seth Foster were here, his evidence would be the highest that the case would admit’ of; but as he is out of the country, and not within the jurisdiction of our courts,- the next best evidence must be resorted to, which is the evidence of his copartner, Thomas Foster, to prove the entries in the books. It is a rule of law, that if a witness be dead, or gone beyond the sea, proof of his hand-writing is good evidence. Esp. 300. Doug. 89. A person out of the state, is as much out of the jurisdiction of the court, as if he were beyond sea. So that the same rule will hold good.
    3. As to the last objection taken, on account of the omission in the entry book, of the person’s name to whom the goods were delivered, the law does not require it. Tq do, therefore, what the law does not make requisite, is superfluous. The law goes on this principle ; that the purchaser took away the goods at the time of the purchase. In England, die custom is for a merchant or shop-keeper to send home goods to a customer, under the care of a trusty servant or warehouse man: here, the customer takes or sends for them himself, and the entry is never made till the goods are actually delivered ; so that the entry is prima facie evidence of the delivery. In the case of Pitman and Maddox, Salk. 690. assumpsit was brought for a taylor’s bill. At the. trial, Lord Holt allowed the book as good evidence ; it being proved, that the servant, who would have been a competent witness, and who wrote the entries, was dead, and that they were in his hand-writing, and no proof xvas required of the delivery of the goods. The present case bears a strong resemblance to this of Pitman and Maddox: Seth Foster would have been a competent witness; but as he is out of the state, proof of the entries being in his hand-writing is therefore sufficient, without any proof or mention of the delivery. The entry itself is primafacie evidence of it.
   Pekdleton, J.

was clearly of opinion, that the original book of entries of a merchant or shop-keeper, is good evidence to go to a jury, upon the plaintiff’s swearing to the same ; and where one of the copartners, who made the entries, is out of the state, the other copartner may swear to his hand-writing in the books. He thought also, that these entries were, in this country, prima facie evidence of a delivery.

Burke, J.

concurred.

Heyward, J.

doubted on the second objection; but said he would decline an opinion, as his brethren had already decided in favour of the plaintiff.

Objections overruled.

Thomas Foster was then sworn to prove ihe books, and there was accordingly a verdict for plaintiffs.  