
    Elizabeth Cogswell, Executrix, Plaintiff in Error, versus William Dolliver, Jun.
    Shop books verified by the oath of the party, though not kept regularly in the manner of a day book, may be given in evidence to the jury, who are to judge of their credit If in an account any articles are within six years, they will draw after them the articles beyond six years, so as to take them out of the statute of limitations.
    Ebror on a judgment of the Court of Common Pleas, for this county, rendered at the last September term.
    *The original action was indebitatus assumpsit for [*218] goods sold, brought by the present plaintiff in error. The defendant filed his account pursuant to the statute prescribing the forms of writs in civil causes, &c., passed October 30, 1784; and pleaded the general issue. After trial, and verdict for the defendant for the excess of his account beyond the plaintiff’s, the plaintiff tendered his bill of exceptions at the common law, or rather pursuant to the statute of Westminster, 2,  which, being sealed with the seal of the chief justice of the Common Pleas, was as follows: —
    “ And after the issue was joined, as aforesaid, the jury was em panelled to try the same. And the said Dolliver admitted, in court, that the account annexed to the writ was just and true, but offered to give his account filed in the case in evidence, as a set-off according to the statute. And to prove the same, he offered two small memorandum books, (which were not kept in the form of a day or waste book,) to be supported by his oath, which books con tained the items of the said account filed, which were entered therein, intermixed with various charges, notes, receipts, and memorandums, relating to the defendant’s dealings with other persons, alike irregular, in whatever blank spaces the said Dolliver happened to find, without any regard to order of dates or pages ; which books, also, contained no items of credit for the said testator.
    “ And the counsel for the plaintiff thereupon objected to those books being given in evidence as aforesaid, because they were not kept as a waste or day book, but were loose memorandums, which might as well have been made at one time as another, and did not, of themselves, unconnected with the oath of the party, contain any evidence of their having been made at their respective dates.
    “And the said counsel further objected to so much of the said account filed as was more than six years old at the time of filing tnereof in the clerk’s office, as barred by the statute of limitations.
    [ *219 ] * “ But the court, after hearing the counsel for the said Dolliver, overruled the said objections, and adjudged that the said books were proper evidence to be left to the jury, supported by the oath of the said Dolliver ; and, remarking to the jury that there were items charged in the accounts of both plaintiff and defendant within six years, and sundry of the defendant’s charges being, like those of the plaintiff, for articles of merchandise, although no credit was given by either party to the other, the court said that the account filed, and the account annexed to the writ, might be considered as mutual accounts, running between merchant and merchant, and so not barred by the statute of limitations.
    “ And inasmuch as these things and objections do not appear by the record of the verdict aforesaid, the counsel for the plaintiff did then and there propose his aforesaid objections to the opinion of the court, and requested the justices to put their seal to this bill of exceptions, according to the law in such case provided.
    “ T. Pickering, Chief Justice, &c.; ” and a seal.
    The errors assigned in this Court were substantially those contained in the bill of exceptions, with the addition of the genera, error. The defendant pleaded in nullo est erra,turn, which was joined by the plaintiff in error.
    Upon an intimation, from the. counsel for the plaintiff in error, that notice had been given the other party to produce the memorandum books referred to, and that, ifnthey were not produced, the plaintiff would contend that they were ell described in the bill of exceptions, and that the Court should consider the description as true, the books were handed to the Court for their inspection.
    
      Andrews, for the defendant in error,
    in support of the judgment, contended that the first error assigned was no error in law. The jury were the proper judges of the credit due to these books. The Court had not determined them to be sufficient evidence, but had referred that question to the proper tribunal. They had authority to do this, and they made a discreet * and [*220] proper use of that authority. As to the second error, he observed that the two accounts were, in themselves, a proof that mutual demands existed, and he relied on the case of Catling vs. Skoulding 
       as decisive of this point.
    
      Putnam-, for the plaintiff in error,
    contended that when the Common Pleas reject evidence which ought to be admitted, or vice versa, this Court will correct the error ; that the memorandums offered by the defendant, containing no internal testimony of their genuineness, really proved nothing, and ought not to have been received as competent evidence ; that they were in fact, of themselves, no better evidence than no books at all, and ought not to give the party any more rights than he would have if he offered his oath; without the production of any original entry; that a contrary decision would open a wide door to frauds and perjuries — would place fair books of account, in which charges were evidently made in the order of time in which the transactions severally happened, upon the same footing, in point of competency, with loose papers fraudulently fabricated for a particular purpose.
    As to the second error, he insisted that the account filed by the defendant (excepting the last item) was barred by the statute of limitations, and ought not to have been given in evidence as a set-off. If the defendant, instead of filing this account, as he has done, had commenced his action upon it, the account, being on one side only, and (except the last item) more than six years old, would have been barred by the statute. The last item would not have taken the preceding ones out of the act.  In such case he would not have been permitted, as he has been in this action, to prove by his own oath alone — what we totally deny -— that there were mutual accounts current between the parties. He would have been obliged to resort to other evidence to establish the fact; and he ought, on no principle, to be in a better situation by filing than by suing his account.
    
      Andrews would have replied, but was stopped by the Court.
    
      
       13 Ed. 1.
    
    
      
       6 Term Rep. 189.
    
    
      
      
        Esp. Dig. 149.
    
   Parker, J.

As to the first error assigned in this cause, it seems to be rather a question of fact than of law. This mode [ * 221 ] * of proof is peculiar to our country, and probably has been in practice from its first settlement. The jury are the proper and adequate judges of the weight of this, as of all other evidence laid before them, and I think the court below did right in referring it to them. As to the second error assigned, it appears that here were mutual accounts, and one or more items on each side within six years, which took the whole accounts out of the statute.

Sewall, J.

In actions of assumpsit for goods sold and delivered, evidence by a shop book, or other daily memoranda, with the supplementary oath of the party himself, if living, is a mode of proof admitted with us generally, and is made necessary by the course of business in transactions of that nature. Books offered as evidence may be rejected by the Court as incompetent, or, when admitted, may be treated as unworthy of credit. I recollect but two sorts of objections which have been allowed against books, as rendering them incompetent evidence. To be admitted in evidence, they must appear to contain the first entries or charges by the party, made at or near the time of the transaction to be proved ; and when the contrary is discoverable upon the face of the book, or comes out upon the examination of the party, they ought to be rejected, as incompetent evidence. Fraudulent appearances or circumstances, such as material and gross alterations, false additions, &c., are also objections to the competency of the book in which they are discoverable, or against which they may be proved in any manner.

Objections to the credit of books admitted in evidence are of various kinds, which there is no occasion to enumerate. The method in which the book has been kept — as when the charges to be proved have been entered to a particular account, like the entries of a leger, and not like those of a day book — is an objection to the credit of the book. The one method leaves a greater opening to fraud and falsehood than the other. The book excepted to in this case was liable to objections of the latter kind, applicable to the credit of the entries to be proved by it, but not to the competency of the book itself. It was therefore properly [ * 222 ] * admitted in evidence to the jury, and might, with the supplementary oath of the party, be satisfactory proof to them, notwithstanding the objections to which these entries appeal to be liable.

The other exception has, I think, been satisfactorily answered by the authority which has been read. It was not perhaps correct to consider the accounts disputed between these parties as excepted from the statute of limitations in the name of mutual accounts between merchant and merchant, But the direction of the court upon this part of the case was, in effect, substantially just. It was proper the jury should take both accounts into consideration, there being on each side charges within the six years. This circumstance was evidence of a renewed promise applicable to the whole account. There being evidence of subsisting accounts between the parties, every new additional charge by one party revives the account of the other party, and is evidence from which the law implies a promise of adjustment, and for the payment of the balance as it shall appear; and this evidence was suitably referred to the jury. I see no error in the record before us, and the judgment ought to be affirmed.

Sedgwick, J.

It is to be lamented that it is necessary, in this country, to resort to evidence of this kind, as it opens a door, and furnishes a temptation, to much mischief. Where a book is offered in evidence, it ought to appear suited to aid the oath of the party, which it is brought to fortify and confirm. The Court are to judge of its competency to be admitted in evidence, and the jury are to decide on the credit which may be due to it. When this book was exhibited to the court below, they considered it as suitable to go to the jury, and they so adjudged. To suffer our inquiries to go behind that decision would be throwing things into too loose a state. I think, the evidence was properly left to the jury.

The true ground of admitting the books of the party in evidence, as a foundation for the suppletory evidence of the * oath of the party, I have always understood to be, [ * 223 ] that the judge or court, before whom the case is tried, should, on inspection, determine that the book was proper for that purpose, and that such determination renders it competent evidence

With regard to the second error assigned, the question was, whether these demands were barred by the statute of limitations. If any of the articles charged in an account were sold and delivered within six years preceding the commencement of the suit, they will draw after them the articles beyond six years, so as to exempt them from the operation of the statute.

Although the Court of Common Pleas were mistaken in the reason of their direction as to this point, yet the direction was substantially right.

Judgment affirmed. 
      
       6 Term Rep. 189.
     
      
      
         Vide Sping vs. Gray, 5 Mason, 505.
     
      
      
         Faxon vs. Hollis, 13 Mass. Rep. 427.— Charlton vs. Lawny, Martin, R. 26. — Mitchell vs. Clarke, Martin, 25.— Thomegeux vs. Bell, Martin, 24 — Kennedy vs 
        Fairman, 1 Hayw. 458.—Kitchen vs. Tyson, 2 Murph. 314. — Lynch vs. M'Hugo, 1 Bay. 33. — Foster vs. Sinkler, 1 Bay. 40.— Tunno vs. Rogers, 1 Bay. 480. — Lynch vs. Petrie, 1 Nott & M'Cord, 138. — Pritchard vs. M'Owen, 1 N. & M. 131. — De Forest vs. Bacon, 2 Conn. R. 633. — M'Kewn vs. Barkdale, 2 N. & M. 17. — Thomas vs. Dyott, 1 N. & M. 186. — Beach vs. Mills, 5 Conn. R. 443. — Stocking vs. Sage, 1 Conn. R. 75. — Richards vs. Howard, 2 N. & M. 474 — Deas vs. Darby, 1 N. & M 436. — Slade vs. Teasdale, 2 Bay. 172. — Lamb vs. Host, Ibid. 362. — Watson vs. Bigelow, 2 Bay. 173. — Geter vs. Martin, 2 Bay. 173. — Frazier vs. Drayton, 2 N. & M. 471. — M’Bride vs. Watts, 1 M'Cord, 384.— Gordon vs. Arnold, 1 M'Cord, 517.— Stores vs. Stores, 1 Root, 139.— Spence vs. Saunders, 1 Bay. 119. — Peck vs. Jones, Kirb. 289. — 1 Root, 220. — 2 Root, 130. — Easby vs. Eakin, Coke, 388. — Fosburgh vs. Thayer, 12 Johns. 461. — Tenbroke vs. Johnson, 1 Cox, 288. — Wilson vs. Wilson, 1 Hals 95.— Swing vs. Sparks, 2 Hals. 59. — Hagaman vs. Case, 1 South. 370.— Prest vs. Merceredu, 4 Hals. 268. — Jones vs. Brick & Al. 3 Hals. 269. — Cole vs. Anderson, 3 Hals. 65. — Elder vs. Warfield, 7 H. & J. 391. — King vs. Madux, Exr. 7 H. & J 467. — Clarke vs. Magruder & Al. 2 H. & J. 77.
      
     