
    Cole v. Dial, Adm’r.
    Entries in a merchant’s book of money loaned or advanced are not competent evidence, even after the death of the merchant. (Note 72.)
    Appeal from Harrison. This suit was brought by the appellee on an open account for money due from the appellant to the appellee’s intestate.
    The only point relied on was the ruling of the court below that the books of. account kept by the deceased as a merchant should be received in evidence as proof of tile money items for money’ loaned and advanced, on proof being made that the deceased kept correct accounts and had no clerk.
    
      D. S. Jennings, for appellant.
    The District Court erred by permitting the book of accounts of appellee’s intestate to go to the jury as evidence of the money items therein. Ro respectable court of dernier resort lias yet gone so far in the path of judicial legislation as to sanction their admission to establish charges of that description. In Case v. Potter, 8 Johns. R., 211, the court say, ”If sueli proof is to be tolerated at all with us, owing to the usage which may have crept in and the difficulty hi many’ cases of giving proof of a sale and delivery’, it can never apply to cash lent, but only to the regular entries of the party in the usual course of. business.” This"doctrine is reaffirmed by the same court in Vosburgh v. Thayer, 12 Johns. R., 401, in which the majority of the court decide in favor of the admission of books of account, but say, *‘The admission of books of account, under proper limitations and restrictions, is not calculated to excite alarm or produce injurious consequences. They are not evidence of money lent. This-was so hold in Case v. Potter, because such transactions are not, in the usual course of business, matter of book account.”
    
      M. J. Hall, for appellee.
    It is alleged that the court erred in permitting the book of accounts of ap-pellee's intestate to go to the jury in proof of themoneyitems therein charged. It will be perceived, by reference to the statement of facts, that the court admitted the books of appellee’s intestate to prove those items only which show on their face that no person could he cognizant of them except the intestate. Every cash item in the account which indicated some person to whom-it was paid by intestate for the benefit of appellant was rejected, unless the person to whom it was so paid was produced on the trial. That shop books are admissible to prove such accounts as the one under consideration is believed to be well settled. (1 Greenl. Ev., sec., 117,118; Pitman v. Maddox, ‘1 Salk., 690; Ld. Raym., 732; Eraxon v. Hollis, 13 Mass. R., 427; Bentley a. ílollen-baek, Wright's R., 169; Prince v. Smith, 4 Mass. R., 155; see note 2, page 153, 1 Greenl. Ev., 4th ed., and authorities there cited.) As to the objection that shop books cannot be admitted to prove money items, there is believed to be no difference in principle whether the books are admitted for one pnrpose or another. There can be no good reason assigned why shop books should not be admitted to prove advances in cash as well as in goods. In either case they are admitted from necessity.
    Nois 72. — In Ward®. Wheeler, 18 T., 249, payments of money were proven by books of account..
   Lipscomb, J.

The admission of books of a merchant as evidence in support of the charges and items therein contained was a long time much contested in the courts of England and the United States, and they were at first received with much jealousy as an innovation on the rule that no person should be permitted to make testimony for himself. And many very able jurists have expressed an opinion in opposition to such evidence and entirely reject them. It is not. however, to be denied that their reception has gradually gained ground until what at first was clearly judicial legislation has obtained a pretty well-established rule for precedent, and now it"is believed that but few courts reject such evidence. The admission of such evidence is, for the most part, rested upon a supposed necessity, as many merchants and shopkeepers are not able to keep a clerk, and would not be able to prove their accounts at all if such evidence were excluded. The force of this reasoning may well be questioned, and it is faulty in this, that it is not reciprocal; that it is not extended to the debtor, and is altogether on the side of the creditor. A debtor would not be permitted to use the same facilities in proving the credits he may be entitled to, and is left pretty much to the conscience of his creditor, and it is much to be feared (hat the admissibility of such evidence has been productive of a great deal of fraud. Jurists seem to have been sensible of the danger, and it is now universally received under the most stringent limitation to the account for such articles as are usually sold by a merchant in the course of his business, and never, as we are aware of, been extended to any other objects, and it is much to be wished that it never should.

In this case the presiding judge seems to have thought himself to enlarge the rule by going one step furl her, and permitted the íooksof a merchant to be proof of moneyed items for a loan or advance. If this extension should be sanctioned, it would be difficult to set bounds and say what could not be embraced in the merchant’s books. Money is not an article of merchandise or traffic, and a sale of a horse or a slave of course would be permitted to be sustained by such evidence with a great deal more propriety than a loan of money under the name of merchandise, although the sale of either would be very foreign to the course of business of a dry-goods or grocery merchant. We admitted the rule with some reluctance in Parrott v. Underwood, so far as it related to the sale of goods in the usnal course of a merchant’s business, but will not tolerate its further extension. Because therefore that the court below permitted the books of the merchant to go to the jury as evidence of money loaned, the judgment is reversed and the cause remanded.

Reversed and remanded.  