
    Vosburgh against Thayer.
    Where there ere regular dealings between the plaintiff and defendant, and it is proved that the plaintiff keeps honest and fair books of account: that some of the articles charged to the defendant have been delivered to him, and that the plaintiff keeps no clerk, his books of account are, under the circumstances, and from the necessity of the case, admissible evidence for the consideration of the jury.
    IN ERROR, on certiorari to a justice’s court.
    
      Thayer sued Vosburgh, in the court below, for butcher’s meat furnished by him to Vosburgh and. his family. It was proved, by several witnesses, that he had been in the daily practice of supplying thpm with meat during the period for which he claimed payment. It was proved, by some of those who had dealt with him, that he kept just and honest accounts. He then offered his books of account in evidence, it appearing that he had no clerk. The books were objected to, but admitted in evidence. ""
   Per Curiam.

The only point for our consideration is, whether the evidence in support of the plaintiff’s demand, in the court below, was admissible. In Case v. Potter, (8 Johns. Rep. 212.,) the question, how far the books of account of a party Were evidence, incidentally came under consideration ; but, as-there was; sufficient proof, in that pose-, to -sustain the verdict, without the books, there was no direct decision on the point.

Cases are there cited, showing that, by the' English law, tradesmen’s books are not legal evidence in favour of the party making the entries ; and we intimated that such proof is tolerated1, here,■ from the usage' which has crept in, and the difficulty of giving proof;, in many cases, of a sale and delivery in the Usual course of business. ' 1

In a casé like the present, it is believed, that the usage and the necessity of admitting such, proof,, has been so long sanctioned and felt in our courts of justice, that It is- now too- late to question the admissi bility of it. The admission of'books -of account in evidence, Under proper limitations and restrictions, is not calculated to excite alarm, or to produce, injurious consequences. ■ They are not evidence of money lent, This was ;-so held-in Case v. Potter, because'such- transactions'are not, hi the usual course of "business; matter of- book account. They are not evidence in the cas.e^of c.a single charge, because there exists,, in such case, no regular, dealing between the parties. They ought not tip be_adipitted' where there are several charges, unless a foundation is first laid for their admission, by. proving tho-t -the party had no clerk, that some of the articles charged have been delivered-, . that the'books produced are the account books of the party, and that he keeps fair and honest accounts, gnd this by- those who have dealt and settled with him. Under these restrictions:,, from the necessity of the- case, and the consideration that the party debited1, is. shown- to have reposed confidence, by dealing with and being entrusted by the other party, they are evidence for the consideration of a jury. Testing the proceeding in this case by. these rules, there is no ground for .re versing the judgmen t. - /’

Platt, J.,

dissented : 1, The admission of.the account book of a party, wherein a charge "is entered by himself, to prove .the truth of such charge, without any other, evidence of the particular item, so' charged, Would be an innovation on the established rules of evidence, as adopted by. us from, the English common law, ' .... • .

in assumpsit, for a tailor’s bill, (Pitman v. Maddox, 2 Salk. 690.,) Holt, Ch. J., allowed a shop book as evidence, it being proved that the clerk who made the entries was dead, and that those entries were in his handwriting. He said it was as good evidence as the proof of a witness’s handwriting to an obligation ; but he held that such shop book is not) of itself, evidence for the party in whose favour the entries were made.

So, in the case of Price v. Torrington, (1 Salk. 285.,) the same rule was maintained. (See, also, Lewis v. Norton, 1 Wash. 76.)

In the case of Potter v. Case, (8 Johns. Rep. 211.,) the Same doctrine was sanctioned in this court.

The rules of evidence are part of the common law; and in varying those rules, the" legitimate power of the court extends no further than to decide, that, from the varying condition or habits of society, or other causes,' the reason and foundation of the former rule have ceased, or varied; and, therefore, the-old rule must .be modified, or a new rule substituted. To exercise a larger power, would be a usurpation of legislative ati> thority.

I can perceive no such change in the reason of the rule now in question. On the contrary, if there remains any point of similitude between our community and that country from whence we derive this rule ; if we now possess any characteristic habits in common with Englishmen ; they are to be seen in our commercial transactions, and in the dealings between tradesmen and their customers.

y?s=Yn some countries, (and particularly in the Mcw-Englancf states,) the account book is evidence for the party who make* it; but, I believe, wherever this practice- prevails, it is insepm rably connected with another rule, which is, that the charges in the account shall be sworn to by the party claiming the be(ic« fit of such charges.

In the case of Cogswell v. Dolliver, (2 Mass. Rep. 217.,) it, •was ruled, that shop books, verified by the oath of the party, may be given in evidence to a jury. Sedgwick, J., there said, «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, ^yhich it is brought to fortify and confirm.”

5o, it appears,, that the principal evidence there,, consists-is the oath of . the party j and that the. account -book is -merely■'7 auxiliary, in corroboration of the oath., .

And, according to Pothier, part iv. art. 2. sect. 4. (Evans's translation, 433.,) by the law.? of France,.-a tradesman’s books “ make a- semi-pro.of, and. the judges often -decide in favour of the demands of tradesmen, by, admitting, their oath as supplying the, defect of -proof arising from their books:”

.. In "Swift's System of the Laws of Connecticut," &c. (page 172.,) he says, “ To admit the books of the parties, without proof to evidence them, .would .produce, the greatest injustice. ' To re-. 'quire- proof of. every article, would - require an - impossibility,': To allow the proof oí part of the articles charged to support the delivery of the whole, Would open thb door to the greatest frauds. It -is best, .-therefore,/to let the-parties in. to. testify,!’ ,&h.

' In the case of Poultney, and others, v. Ross, (1 Dallas, 238.,) Shippen, President, in delivering the opinion, of the court: said, w Though, in England, .the shop book of a tradesman is not evidence of a debt, without the -assistant' oath ■ of the- clerk who? made, the entry, yet .here, from the . necessity .of the ■ ease, ■ as. business, is often earned on-by- the’ principal, and many Of Our. tradesmen .do hot keep clerks,' the book, proved.tipi the oath of-the plaintiff himself, has always been- admitted.” So, also, in Sterritt v. Bull, (1 Binney, 234.)

.' By our jbw, the party is riot-allowed to. swear/ in confirmation of his accounts. Shall w-e, then, adopt part of the new rule,^admitting the account.book as evidence, without the qualifiotiip ilion, (the, sappletory oath,) which,,'.in other countries, has. been*'' ^thought indispensable,- in order to make that rule iokraSl&Y'’ ■ '

* '41'hópe wnshadl'Bevm: allolvpartfes to swear to-their adc'ounts, in our. courts of law: , ' ' •’

■ To permit, a, party to support his, account by Ms.-own oath/ affords, in niy judgment, but little security against -false' accounts ; for the man, whose conscience would permit him, delibes'atqly,v to make a false charge against his neighbour, would seldom hesitate to swear to it. ’ • • ' ;'' ■ , . ,

Nor would I permit a party to defeat a charge against himself, by denying it upon oath j because, i.t'wóufef be to-^isebuv rage fraud in some men, by tempting .others to commit per-’. jury.- •. ."

Besides, we have adopted the English common law as a part of our state constitution, subject only to legislative alteration; and that common low is, therefore, more strictly obligatory upon us, than upon our sister states. In adopting a new rule of evidence, in this case, we make the law, instead of expounding it.

We have no right to adopt the French law, and the civil law, in preference to the English rule ; as the courts of Massachusetts, Connecticut, and Pennsylvania, seem to have done. Sir William Blackstone, however, insists that the civil law was conformable to the English rule; and that other nations have. “ distorted it.” (3 Bl. Com. 368.)

2. The new rule now attempted to be introduced, is impolitic and unsafe; inasmuch as no human prudence or foresight can guard against the fraudulent claims of tradesmen, who, by acts of their own mere volition, are permitted to subject a person to the payment of money, on no other additional evidence, than that such person has, on some former occasion, dealf with them on credit; that they do not choose to keep clerks; and that they can produce witnesses to swear, that such tradesmen, in their dealings, have never cheated them. On such proof alone, to compel the opposite party to disprove the charge, or to pay it, would, ip my judgment, be an unreasonable hardship.

No necessity exists for such an alteration of the rule, inasmuch as the tradesman always has it in his power to protect himself, by refusing credit; by keeping a clerk, or servants 5 by calling witnesses, or taking receipts for articles furnished. That a detailed account has been delivered to the party charged, and that lie assented to it, or acquiesced without objection, is sufficient proof of the account, prima facie; and there is in practice, generally, very little difficulty in adjusting the balance of a fair account, before suit brought.

That we and our ancestors, for ages, have lived and enjoyed security, under the old rule, is palpable evidence that no necessity demand.', an alteration. Necessity is a dangerous word,

3dly. The rule, as now proposed to be modified, is very complicate h, 'nd difficult in its application ; and, therefore, extitime.i.7 liable to be misapplied and perverted, especially in just) 02s' . " rs. -.-/here, according to the established rules in regard to feihr; ■; aside verdicts, infinite frauds and oppression may v be screened, by the latitudináry powers of juries in.-iber application of such,a complex rule. The .case would seldom^. j.n¿ee¿j. occur, where this court,couldj' on justifiable grounds, control the- verdict of a jury upon the' point now. under consideration. I think, therefore, the judgment of. the court below, ought to be reversed* . ’ , 1 , . ;

■Judgment áffirmedv 
      
      
        Vide Thomas & Foster v. Sinker,(1 Bay's Rep. 40.) Linch v. M'Hugo, (Id. 33.) Spencer v. Sanders, (Id. 119) Tunno v. Rogers, (Id. 480.) Slade v. Teasdale, (2 Bay's Rep. 172.) Lamb v. Hart, (Id. 362.) Tomlins and others v. How, (1 Wash Rep. 190—191.)
     