2 Mass. 217 | Mass. | 1806
As to the first error assigned in this cause, it seems to be rather a question of fact than of law. This mode
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 discoverable 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 leger, and not like those of a day book — is an objection to the credit of the book. The one method leaves a greater opening to fraud and falsehood than the other. The book excepted to in this case was liable to objections of the latter kind, applicable to the credit of the entries to be proved by it, but not to the competency of the book itself. It was therefore properly [ * 222 ] * admitted in evidence to the jury, and might, with the supplementary oath of the party, be satisfactory proof to them, notwithstanding the objections to which these entries appeal to be liable.
The other exception has, I think, been satisfactorily answered by the authority
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. When this book was exhibited to the court below, they considered it as suitable to go to the jury, and they so adjudged. To suffer our inquiries to go behind that decision would be throwing things into too loose a state. I think, the evidence was properly left to the jury.
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, [ * 223 ] that the judge or court, before whom the case is tried, should, on inspection, determine that the book was proper for that purpose, and that such determination renders it competent evidence
With regard to the second error assigned, the question was, whether these demands were barred by the statute of limitations. If any of the articles charged in an account were sold and delivered within six years preceding the commencement of the suit, they will draw after them the articles beyond six years, so as to exempt them from the operation of the statute.
Although the Court of Common Pleas were mistaken in the reason of their direction as to this point, yet the direction was substantially right.
Judgment affirmed.
6 Term Rep. 189.
Vide Sping vs. Gray, 5 Mason, 505.
Faxon vs. Hollis, 13 Mass. Rep. 427.— Charlton vs. Lawny, Martin, R. 26. — Mitchell vs. Clarke, Martin, 25.— Thomegeux vs. Bell, Martin, 24 — Kennedy vs