not to mis-state the only fact sought to be established by the proposed evidence. On the other hand, the declaration of the tradesman's servant is offered in evidence to prove the fact of delivery, and as he gives the account not against his own interest, (which is some security for the truth of the statement in the other case,) the probability of his account being true or false is neither greater nor less than the probability of his being honest or dishonest, which is nothing more than may be said in every case of hearsay. The circumstance of his thereby acknowledging the receipt of goods, which, it may be said, would be evidence in an action against him, seems to amount to little or nothing. It was the least he could say: to have said nothing at all, would, as he must have known, necessarily lead to some inquiry. These considerations may serve to show how cautiously such declarations by shopmen are to be admitted in evidence, to charge third persons with the receipt of goods; more particularly, as the tradesman may easily be furnished with evidence of delivery, by taking a memorandum from the purchaser, or by requiring some other security.

In the case of Evans and Lake (1), a merchant's books were received in evidence under particular circumstances. The question there was, whether certain goods, which had been bought in the name of Mr. Lake, were purchased on *his own account, or in trust for Sir Stephen Evans. To prove the latter of these positions, the assignees of Sir Stephen Evans, who were the plaintiffs, first showed, that there was no entry in the books of Mr. Lake relating to this transaction; they then produced several receipts in the possession of Sir S. Evans for the payment of part of the goods, and on the back of the receipts there was a reference in the hand-writing of Sir Stephen's bookkeeper, since deceased, to a certain shop-book of Sir Stephen. Upon this, the question was, whether the book so referred to, in which was an entry for the payment of

(1) Bull. N. P. 282, 283; and see Cooper v. Marsden, 1 Esp. N. P. C, 1.

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money for the whole of the goods, should be read. And the Court of King's Bench on a trial at bar admitted the entry, not only as to the part mentioned in the receipts, but also as to the remainder of the goods then in the hands of Mr. Lake's son. In this case, (which Ld. Hardwicke (1) has observed upon, as "new and having gone a great way,") the entry was not offered by the assignees, as evidence of payment against the seller of the goods, but as corroborating evidence to show, that while the books of the other party concerned took no notice whatever of the goods, those of Sir S. Evans, under whom the plaintiff's claimed, treated the goods as bought on his account.

In another case, where the plaintiff, to prove delivery of wine to the defendant, produced a book belonging to his cooper, since dead, whose name was subscribed to several articles, which it was proposed to read after proof of the hand-writing, Lord Raymond, C. J. would not allow it, saying it differed from Lord Torrington's case (2).* *And Lord Kenyon ruled, in the case of Calvert v. Archbishop of Canterbury (1), that, in an action for the hire of a pair of horses, an entry by the plaintiff's servant, since dead, stating the terms of the agreement with the defendant, ought not to be admitted.

In an action by a tavern-keeper (2), it appeared, that the defendant belonged to a club, which was held at the plaintiff's house, and that in a room, where the club met,

(1) In Glyn v. Bk. of England, 2 Ves. 43.

(2) Clerk v. Bedford, Bull. N. P. 282.

(1) 2 Esp. N. P. C. 646.

(2) Wiltzie v. Adamson, K. B. Sitt. after Mich. term 1789, MS.

* See the case of Cooper v. Marsden, 1 Esp. N. P. C. 1., where, in order to prove payment of a draft at a banker's, the banking-house book was offered in evidence, in which book there was an entry of the payment of the draft in question. Lord Kenyon ruled, that the entry could only be proved by the clerk who made it, if living; and that other proof was not admissible, though he might be abroad. According to the report of this case, no objection seems to have been taken against the admissibility of the entry itself, on the ground of its being found in a third person's book; nor does that point appear to have been noticed.

a book used regularly to be kept open, in which the plaintiff's servants entered the articles, as they were ordered by the members of the club, who had thereby an opportunity of inspecting and correcting the account. Lord Kenyon admitted the book as evidence of the delivery, though it was not proved that the servants, who made the entry, were dead, nor was their absence accounted for, and only their hand-writing was proved. The daily account in the book was in this case considered as tantamout to a bill delivered and admitted by the defendant.

The stat. 7 J. 1. c. 12. enacts, that the shop-book of a tradesman shall not be evidence in any action for wares delivered or work done, above one year before the bringing of the action, except the tradesman or his executor shall have obtained a bill of debt or obligation of the debtor for the said debt, or shall have brought against him some action, within a year next after the delivery of the wares, or the work done. And the 2d section provides, that nothing in the act shall extend to the mutual trading and merchandise between tradesman and tradesman. At the time of making this act of parliament, there was an opinion growing up, that, after a certain length of time, a man's shop-books should be evidence for him, after the year: to prevent which, the act was made (3). However the book is not evidence, even within the year, except under particular *circumstances. An entry made by a tradesman himself, stating the delivery of goods, is not evidence for him; but, whether made by him or not, it may often serve as a memorandum to refresh the memory of the shopman, and for that purpose is admissible (a).

(3) Per Ld. Hardwicke, 2 Ves. 43.

(a) In a suit in chancery between partners, the books of the partnership are evidence, and vouchers as to the particular items are unnecessary. Fletcher v. Pollard, 2 Hen. & Mun. 544. Brickhouse v. Hunter & others, 4 Hen. & Mun. 363.

Shop-books are admitted in many of the states as evidence of goods sold and delivered, or of work and labour. How far they

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It has been already stated, that admissions by one of the parties to a suit, against his interest, are evidence against him; and that statements made by a third person, on being referred to by a party respecting any litigated

are competent evidence, in the state of Massachusetts, will appear from the opinion of the judges in the case of Cogswell v. Dolliver, 2 Mass. Rep. 217. Sewall, J. says; "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 discernable 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 ledger, and not like those of a daybook, is an objection to the credit of the book." 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. 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 that the judge or court before whom the case

point (1), or representations by a party's agent (2), are in many cases admissible against the principal. To such cases the objection of hearsay does not apply. Nor does the objection apply to the account which has been given by a witness on a former trial, or to dying declarations. (2) See ante, p. 74.

(1) See ante, p. 77.

is tried, should, on inspection, determine that the book was proper for that purpose, and that such determination renders it competent evidence." In Prime v. Smith, 4 Mass. Rep. 455., Sewall, J. observes, that "in actions of assumpsit for articles delivered, or for work and labour performed, the admission of proof by the book of the plaintiff himself, appearing to be in his own hand-writing, and supported by his supplementary oath, is a practice, in the extent to which it has been carried, peculiar to New England, if not confined to this state. But it is a practice, which has been long established, and seems to have arisen upon the most reasonable grounds, out of the necessity of the case, and a conformity to the actual state of things.-There are however obvious difficulties and hazards attending this mode of proof; and it ought not to be extended by any new precedent. Every memorandum of a shop-keeper or labourer is not to be admitted as his book. It is essential to this kind of evidence that the charges appearing in the hand-writing of the party, are in such a state that they may be presumed to have been his daily minutes of his business and transactions, in which regard is had to the degree of education of the party, the nature of his employment, and to the manner of his charges against other persons. Where this appearance is wanting, and the presumption cannot be made, the evidence has been usually rejected as incompetent. And when, having this appearance, a plaintiff's books or memorandums are admitted, the evidence remains liable to every objection, which may be suggested, from unfair appearances in the statement of the particular account in issue, or from the whole book or minutes taken together, and which materially affect the credibility of the evidence." It has been held that when an account was transferred from the ledger to the daybook, the ledger should be produced, that the other party may have advan tage of any items entered therein to his credit. Prince's Exr. v. Swett, 2 Mass. Rep. 569.

In Connecticut in the statutory action of book-debt (vide laws