AN ORIGINAL ENTRY, to be admissible as evidence, must be made in the proper book. In general, the books in which the first entries are made, belonging to a merchant, tradesman, or mechanic, in which are charged goods sold and delivered, or work and labor done, are received in evidence. There are many books which are not evidence. A book made up by transcribing entries made on a slate by a journeyman, the transcript being made on the same evening, or sometimes not until nearly two weeks after the work was done, is not a book of original entries. A book purporting to be a book of original entries, containing an entry of the sale of goods when they were ordered, but before they were delivered, is not a book of original entries." And unconnected scraps of paper, containing, as alleged, original entries of sales by an agent, on account of his principal, and appearing on their face to be irregularly kept, are not to be considered as a book of original entries."

The entry must be made in the course of business, and with the intention of making a charge for goods sold and work done; they ought not to be made after the lapse of one day. A book in which the charges are made when the goods are ordered is not admissible.P

or

The entry must be made in an intelligible manner, and not in figures or hieroglyphics which are understood by the seller only. A charge made in gross as "190 days' work,"r "for medicine and attendance," or "thirteen dollars for medicine and attendance on one of the general's daughters in curing the whoopingcough," were rejected. An entry of goods without carrying out any prices proves, at most, only a sale; and the jury cannot, without other evidence, fix any price. The charges should be specific, and denote the particular work or service charged as it arises daily, and the quantity, number, weight, or other distinct designation of the materials or articles sold or furnished, and attach the price and value to each item."

The entry must, of course, have been made by a person having authority to make it, and with a view to charge the party."

The proof of the entry must be made by the person who made it. If made by the seller, he is competent to prove it from the necessity of the case, although he has an interest in the 1-1 Rawle, 435: 4 Id. 408; 2 Watts, 451; 4 Id. 258; 5 Id. 432; 6 Whart. 189; 2 Miles, 268. m-4 Rawle, 404. n-13 Serg. & R. 126; see 2 Whart. 33; 4 M'Cord, 76; 2 Wend. 72; 1 Yeates, 98; 4 Id. 341. 0-1 Nott & M'Cord, 130; 4 Id. 77; 4 Serg. & R. 5: 9 Id. 285; 8 Watts, 545. P-4 Rawle, 404; 3 Dev. 449. 9-4 Rawle, 404. r-1 Nott & M'Cord, 130. S-2 Const. 476. t-1 South. 370. -2 Const. 745; 2 Bail. 449; 1 Nott & M'Cord, 130. V-4 Rawle, 404. W-8 Watts, 545. X5 Conn. 496; 12 Johns. 461: 1 Dall. 239: 4 Kas. 211. y-2 Watts & S. 137. Z-1 Yeates, 347; Swift Ev. 84; 3 Vt. 463; 1 M'Cord, 481; 2 Root, 59: 1 Cooke, 38. a1 Day, 104; 1 Aik. 73, 74; Kirb. 489. b-1 Browne, 257. C-2 Whart. 33. d-8 Wheat. 326; 3 Campb. 305, 377; 2 Perr. & D. 573: 15 Mass. 380: 20 Johns. 168: 7 Wend. 160; 15 Conn. 206; 7 Serg. & R. 116; 16 Id. 89; 2 Harr. & J. 77: 2 Rand. 87; 1 Younge & C. Exch. 53. Martin (N. S.) 508: 4 Id. 383; 2 Mass. 217; 1 Dall. 239; 2 Bay. 173, 362; 5 Vt. 313; 1 Phill. Ev. 266; Cow. & H. note. f-See 1 Johns. 34. g-3 Jones Eq. 109; 3 Grant

e-2

matter in dispute. When made by a clerk, it must be proven by him. But in either case, when the person who made the entry is out of the reach of the process of the court, as in the case of death, or absence out of the State or county, the handwriting may be proved by a person acquainted with the handwriting of the person who made the entry.5

The books and original entries, when proved by the supplementary oath of the party, is prima facie evidence of the sale and delivery of goods, and work and labor done. But they are not evidence of money lent or cash paid, nor of the time a vessel lay at the plaintiff's wharf, nor of the delivery of goods to be sold on commission.

These entries are evidence in suits between third parties, and also in favor of the party himself.e

AN ACCOUNT STATED is in the nature of a new promise, and is conclusive as to the liability of the parties, with reference to the transactions included in it, except in cases of fraud or manifest error.h

Acceptance may be inferred from circumstances; as where an account is rendered to a merchant and no objection is made, after sufficient time. In general, when a party indebted upon an account receives and retains it beyond such time as is reasonable under the circumstances and according to the usage of the business, for examining and returning it, without communicating any objections, he is considered to acquiesce in its correctness, and he becomes bound by it as an account stated. Signature to the account, or express admission is not necessary. This rule is held applicable to accounts between merchants residing in different countries. Such an account is deemed con. clusive between the parties, to the extent agreed upon, unless some fraud, mistake, or plain error is shown," and in such case, generally, the account will not be opened, but liberty to surcharge or falsify will be given. But in cases of gross fraud, or gross mistake, or undue advantage, or imposition made palpable to the court, the court will direct the whole account to be opened and taken anew.P Acceptance by the party to be charged must be shown by the one who relies upon the account. The Cas. 195. h-1 Esp. 159: 24 Conn. 591; 4 Wis. 219: 5 Fla. 478; 6 Coldw. 56; see 4 Sandf (N. Y.) 311; 6 Mo. 226; 37 Ill. 512; 6 Conn. 447; 11 Wheat, 237: Addis. 260, 334 1-2 Vern. Ch. 276; 1 Sim. & S. Ch. 333; 3 Johns. Ch. 569; 7 Cranch, 147; M'Cord Ch. 156; 2 Md. Ch. 433. J-7 Cranch. 147; 6 Ala. 518: 13 Cal. 427; 10 Iowa, 238: 18 La. An. 124; 2 Md. Ch. 433; 8 N. J. Eq. 795; 26 Miss. 212; 3 Johns. Ch. 569, 587, 1 Edw. Ch. 417: 2 Id. 1; 11 N. Y. 170; 2 Barb. 586; 10 Id. 213; 12 Id. 288; 45 Id. 490; 1 M'Cord, 156: 15 Vt. 105. K-7 Cranch. 147 25 Miss. 267: 3 Johns. Ch. 569. 1-2 Brown Ch. 62, 310; 2 Ves. Ch. 566, 837: 1 Swanst. Ch. 460; 6 Madd. Ch. 146; 20 Ala. (N. S.) 747; 3 Johns. Ch. 587; 1 Gill. 350; 3 Jones Ch. 109; see 2 Edw. Ch. 1; 10 Barb. 213; 4 Sandf. 311; 3 W. & S. 109; 31 N. Y. 498; 10 Humph. 238; 18 N. Y. 285: 12 La. An. 20; 18 Id. 356; 50 Me. 102; 2 Bosw. 188; 13 Ohio St. 168. m-1 Hopk. 239; 4 Mich. 336. n-1 Parsons Contr. 174; 1 Johns. Ch. 550; 1 M'Cord, 156. 0-2 Atk. Ch. 119; 9 Ves. Ch. 265: 1 Schoales & L. Eq. 192; 7 Gill. 119; 1 Md. Ch. 306. p 6 Coldw. 56. 10 Humph. (Tenn) 238; 12 Ill. u.

acknowledgment that the sum is due is sufficient, though there be but a single item in the account. Acceptance may also be inferred from retaining the account a sufficient time without making objection, and from other circumstances. The acceptance of the account is an acknowledgment of a debt due for the balance, and it is not necessary to prove the items, but only to prove an existing debt or demand, and the stating of the account.'

Any admission of a balance or acknowledgment made by one party to another, that a sum of money is due to the latter, is sufficient prima facie evidence to entitle him to recover that sum on an account stated; so where the defendant stated that he would call and settle the amount of the debt sent in," or where he sent money on account, stating he would pay the remainder next week. But a mere qualified acknowledgment is not.p

An acceptance of a bill is evidence of an account stated by the acceptor with the holder; at all events it is so in an action at the suit of the drawer, or at the suit of a payee, who is also drawer. A promissory note is evidence as an account stated, in an action by the payee against the maker. An I. O. U. is evidence of an account stated." Where accounts are submitted to an arbiter, not by bond, his award may be given in evidence under an account stated. Stating an account will, in general, amount to an admission of the title of the party to receive the money."

V

W

The account must be stated by a competent person, excluding infants and those who are of unsound mind. Husband and wife may join and state an account with a third person. An agent may bind his principal. Proof of an account stated with the plaintiff's agent is suffi cient, proving the party to be such agent; so a plaintiff may recover on an account stated by the defendant with the plaintiff's wife, or an account stated by the defendant's wife, if she proved to be the party's agent. Partners may state accounts, and an action lies for the party entitled to the balance.b

The subject-matter of the account must be proved to have been money and a debt. A definite ascertained sum must be stated to be due.d It is sufficient to prove an account stated, without giving evidence of the several items constituting the account, it is not necessary that there should be cross demands between the parties, or that the defendant's admission should relate to more than one item or transaction. Accounting in a particular character admits that character. An account stated

g-2 Mod. 44; 2 Term. 480. h-13 East. 249; 5 Maule & S. 65: 1 Show. 215. 1-7 Cranch, 147: 3 Watts. & S. 109; 10 Barb. 213; 1 Sandf. 311; see 22 Penn. St. 454.j-1 Gill. 234. K-11 Eng. L. & Eq. 421. 1-16 Ala. (N. S.) 742. m-2 Mod. 44; 1 T. R. 42; I Esp. 159: 6 Id. 24. n-3 Stark. 10. 0-10 East. 104 p-i R. & M. 239; 4 B. & C. 235: 6 D. & R. 306, S. C. q-1 H. Bl. 239; 3 East. 169; 3 B. & P. 559; 1 East. 98. -5 M. & S. 65. S-5 B. & A. 245; 5 B. C. 360. t-2 Str. 719: Chitt. Bill, 366. u-5 M. & S 65. V-1 Esp. 194: Chitt. Pl. 308. W-4 Moore, 73. X-1 T. R. 40. y-2 r. R. 483; 16 Eng. L. & Eq. 290. Z-3 Johns. Ch. 569.

does not alter the nature of the original debt.h

An account stated is not, in general, conclusive evidence against the party admitting the balance to be against him. He would be allowed to show a gross error or mistake in the account, or any fraud or misrepresentation by the other party, if he could adduce clear evidence of that fact. But where an account is settled, and the party gives a bill for the amount, which bill is not paid, he cannot, on an action brought, impeach the charges in the first account which he has settled. And where parties having cross demands, settle and balance their accounts, though part of the plaintiff's demand could not be recovered in the action, the settlement of accounts will bind the defendant, so that he cannot set up that defence to an action for the balance.k

The material allegations in an action upon an account stated are: (1) That plaintiff and defendant came to an accounting together, (2) in such accounting defendant was found in debted to plaintiff, (3) which defendant prom ised to pay, (4) and has not paid.

a-B. N. P. 129. b-4 Dall. 434; Wash. C. C. 435; 14 Vt. 169. C-5 Moore, 114, 116. d-19 Serg. & R. 241. e-1 T. R. 42; 8 Taunt. 688. f-13 East. 249; 5 M. & S. 65. g-10 East. 104. h-Alleyn, 72, 73. i-1 T R. 42; see 2 Edw. Ch. 293; 6 Ired. Eq. 197. As to effect of stipulation by the words "errors excepted" or otherwise, reserving leave to interpose objections in future to an account; see 9 Cal. 353; Hopk. Ch. 239; 6 Harr. & J. 43. j-1 Esp. 159; 1 Stark, 151; 3 Id. 51; Chitty Bills, 72, see note o, and cases noted for examination. K-6 Esp. 24; 12 Mo. 517, Ch. C. 199; see reference in preceding note.

stock as fol

lows (describing them.) Promissory notes as follows (describing them.) Cash. Etc., etc.

Said administrator claims credit as follows:

Diff'ce bet. sale bill and inven'ry and

appraisem't 1231 70 Desperate

claims re

In the matter of the assignment of I. T., In the

Date.

merchant.

court.

Account of A. A., assignee of said insoivent.

Said assig'ee ch'rgs himself as follows, towit, etc.

C $

Date.

V'cher

Said as- $ sig'ee claims credit as follows, viz.,

etc.

Accounts-Guardian's.
See title AFFIDAVITS, post.

The account for settlement with the court should be a true transcript of the books kept by the guardian. It should clearly show the debits and credits of the guardian, and should clearly refer by number or otherwise to the vouchers produced for each item, and be so complete that any person, without explanation, can understand the precise condition of the account.

G. N., guardian of I. D., one of the children and heirs of D. D., of deceased, in account with the estate of said D. D.

follows, etc.

To bal.

Date.

By bal.

Account of A. A., assignee of I. T., insolvent.