
    Richard B. Conklin v. Jacob A. Stamler.
    The account books of a party cannot be used as evidence of the sale and dehvery of goods charged, therein, without previously showing that some of the articles charged have been delivered; that he kept no clerk, and that others dealing with him have settled their accounts by his books, and found them accurate.
    The origin of this rule of evidence explained.
    It seems that it arose from necessity, and owes its origin to the fact that, formerly, a party could not b» a witness in his own behalf; and as the reason for it has now been obviated, by permitting parties to be examined, the rule no longer exists.
    Appeal from a judgment .rendered in the Fourth District Court in favor of the plaintiff. The action was brought to recover for goods sold and delivered. It appeared that the plaintiff was a butcher, and kept no clerk. At the trial he produced an account book, containing charges against the defendant, and two witnesses were examined who testified that they had dealt with Mm, had settled their accounts by a book similar to the one produced, and they had found it correct. It was not shown that the defendant had ever dealt with him, or that any one of the articles charged against him had been delivered or that the book produced was his account book with his customers. Judgment having been given for the amount claimed, the defendant appealed.
    
      S. V. Loomis, for the appellant.
    
      R. Grosman, for the respondent.
   Brady, J.

The only proof made in the court below was, that the plaintiff had no clerk or bookkeeper, and that persons dealing with him had settled with him by his books. There is no evidence, either, that the defendant dealt with him, or of the delivery of any one of the articles named' in the bill of items. The courts have required, in similar cases, that a foundation should be laid for the introduction of this kind of evidence, which consists of proof, that the plaintiff had no clerk, that some of the articles charged have been delivered, that the boohs produced are the account books of the party, and that he keeps fair and honest accounts; and this by those who have dealt and settled with him. Vosburgh v. Thayer, 12 Johns. 461; Dumell v. Sutherland, 11 Wendell, 568. The admissibility of the books, on such proof, is put upon the ground of. necessity, arising from the former incompetency of the claimant to be a witness in his own behalf. The reason of the rule seems to have been destroyed by the act of the legislature authorizing the examination of parties in their own behalf; but however that may be, the testimony on behalf of the plaintiff was not sufficient to make the book produced evidence, and the judgment must be reversed. There was neither evidence that the defendant dealt with the plaintiff, nor of the delivery of any of the articles.

Daly, First Judge.

In Morrill v. Whitehead (4 E. D. Smith, 239,) it was proved that the books, produced were the account books of the party; that he had no clerk, and'that he kept fair and honest accounts; but, as there was no proof that any one ot the services entered in the book had been actually rendered, we could not be allowed to swear to his accounts; that the rule, even with that qualification or condition, would be no security against false accounts, and predicted that the recognition of such a practice, upon the plea of necessity, would be followed by most mischievous consequences.

But the other members of the court, in an opinion per curiam, thought that the usage and the necessity of admitting such proof had been too long sanctioned and felt in our courts, and that it was then too late to question its admissibility; but instead of simply recognizing the practice as it had prevailed in the Dutch, tribunals, and declaring that the party should or could be examined under oath as to the truth or correctness of the entries made by him, they devised, as a test and. safeguard, the special preliminary proof which has since been required as a condition precedent to the admission of the books, influenced, no doubt, by what was said by the whole court' in the former case, and what was strongly insisted upon by Judge Platt in his dissenting opinion, that they had no authority to require, and could not admit, a party to be sworn as a witness.

The examination of these cases will show that the court had no very clear conception of the nature of the question before them, which was simply whether this practice was the law of the colony before the revolution ; for if, by long usage and general adoption, it had, before that event, become the recognized mode of proving facts in certain cases, then it was the law of the colony, instead of the opposite English rule, which, being repugnant, was not in force at the breaking out of the revolution, and was, consequently, not ’ embraced in the retaining clause of the Constitution. If they had known, which they probably did not know, that the rule which they found in use had existed from the time of the Dutch, and had been in practical operation for more than one hundred years, they would have found an easy solution of the difficulty by simply declaring, as the New Eng land courts had done, that it had been in use from the earliest period of the colony, and had thus grown into a common law by general acquiescence and long established usage. This conelusion would have relieved them from all difficulty in respect to the feature by which the supplementary oath or examination of the party as to the truth of the entries might.be required, for as it formed just as much a part of this course of procedure as any other, and rested upon the same general authority—long settled usage—they had nothing to do but to recognize the whole.

But instead of doing this, they looked into the English books and found that Lord Holt had said twice, at Nisi Prius, (Pitman v. Madox, Holt, 298, and Price v. The Earl of Torrington, 1 Salk. 285), “ that a tradesman’s shop book was not of itself evidence, without something more, and they undertook to supply what, that 1 something more ’ should be.” It was the rule of the common law that the party to the record could not be a witness, and Blackstone had declared (3 Com. 368) that the practice abroad of allowing a merchant’s books, with his supplementary oath, to amount at all times to full proof, was a distortion of the civil law; in which, it may be remarked, he was mistaken; for to make the books sufficient evidence, in countries where the civil law prevails, something more than the supplementary oath of the party is requisite. Domat, part 1, b. 3, § 2, art. 9 ; Meyer’s Institutiones Judiciaries, c. 14, p. 387; Cod. 4, 19, 5, 7 ; Code Civil, L. 3, T. 3, § 5, art. 1367. The judges, no doubt, concluded from the rule of the common law, and from Blackstone’s interpretation of the civil law, that the oath or examination of the party in substantiation of the entries could not be allowed. But feeling the imperative necessity of permitting, in certain cases, the books, when kept by the party, to be used as instruments of evidence, or rather the injustice and absurdity of not allowing them to be taken into consideration at all, they evidently thought that the usage which they found existing might be recognized, and the requirement of Lord Holt satisfied by the preliminary proofs which they devised and required as a condition precedent to giving the books in evidence. Hew Jersey and Georgia appear to be the only states that have imitated the example of Hew York. In fourteen of the states, either by statute or by the recognition of the courts, the oath of the party is required in corroboration of the entries, while in five of the states the books are not allowed to be given in evidence at all. Nelly v. Holmes, 3 Ala. 642; De Camp v. Vandegroft, 4 Blackf. 272; and cases collected in note 201, 3 Cowen & Hill’s Notes to Phillipps’ Ev., 3d ed., 297, and in note to 1 Greenleaf’s Ev., § 117.

But the important change recently made in the law of this state, by which a party may testify the same as any other witness, has obviated the difficulty that was supposed to exist when the rule above referred to was recognized, and there is now no occasion for resorting to the books unless it may be to refresh the party’s memory as to the items, or in cases where there is a failure of recollection. In the latter case, the books, if they contain the original entries of the transaction, would still, I apprehend, be evidence within the rule recognized in Merrill v. Ithaca & Oswego Railroad Co., (16 Wend. 586); that is, if the party who made the entries has entirely forgotten the facts which he recorded, but can swear that he would not have entered them if he had not known them at the time to be true, and that he believes them to be correct. But I agree with Judge Beady that the books, except in the cases above put, can no longer be received as sufficient evidence of the sale and delivery of goods, or of the performance of services, by merely proving the preliminary facts, which, heretofore, made them sufficient evidence; but that the party, if he have no other means of establishing the facts, must go upon the stand as a witness, resorting to his books only where it is necessary to refresh his memory as to the items, or where, from a failure of recollection, he is compelled to rely upon them alone, and can swear to what is required to warrant their introduction, as evidence to be submitted to the tribunal that is to pass upon the facts.

Judgment reversed.  