Case v. Potter

8 Johns. 211 | N.Y. Sup. Ct. | 1811

Per Curiam.

The parol proof was sufficient to warrant the verdict in the court below. The party did not object to the admission of the book of entries of the intestate, but only to the conclusive effect of the book. How far the private entry of the party himself, in his favour, be admissible, as evidence for him, in support of a charge, is a question not necessarily arising in this case. Such entries have been held admissible, when against the interest, of the party making them. (7 East, 290. 10 East, 109. 1 Campb. N. P. 367.) But the general rule of the English law is to deny the legality of such entries as proof, when in favour of the party, even in the case of a regular tradesman’s books. (2 Salk. 690. Buller's N. P. 282.) No inference can be drawn from the provision in the statute of 7 Jac. I. that tradesmen’s books were evidence within the year; for Lord Holt, in the case in Salk. repels any such inference; and Barrington, in his Observations upon the Statutes, (p. 399.) says, that the statute . of James, in this particular, “ shows very great ignorance of the common law.” In other countries in which such evidence, of the party’s own fabrication, is admitted, it requires the suppletory oath of the party, to give it effect. (Pothier, Traite des Oblig. No. 719. 833. 2 Tyng’s Rep. 217.) If such proof is to be tolerated at all with us, owing- to the usage which may have crept in, and the difficulty, in many cases, of giving proof of a sale and delivery, it can never apply to a charge for cash lent, but only to the regular entries of the party, in the usual course of his business; and even then, it cannot receive greater indulgence than what was granted to it by the magistrate in this case, for we have no authority to require or admit the oath of the party. All that the justice ruled upon the-trial in this case, was, that the book was not conclusive, nor, of itself, sufficient evidence to entitle the plaintiff to recover, but that the jury might consider it in connection with other circumstances. As the demand was for cash lent, the book would have been inadmissible, if objected to at the time, and without it the evidence was sufficient.

Judgment must therefore be affirmed. -