1 Binn. 234 | Pa. | 1808
delivered the opinion of the court.
This case is brought before the court on a writ of error to the Court of Common Pleas of Chester county, and is founded on two bills of exceptions taken on the trial.
Although there are two bills of exceptions, yet the subject of them is the same, viz. the admissibility of the plaintiff’s book in evidence. They present the matter under two different points of view, and shall be considered separately. -
The first exception, which is signed by the presiding judge, was taken to the admission of the book after one of the plaintiffs had sworn “ that it was their book of original entries, made “ principally by two clerks of the plaintiffs.” It appears that if the book can properly be called a book of entries, it is one of a very uncommon kind; it does not contain entries of goods sold, in the usual manner, but is in fact a book containing the receipts of different carters for quantities of iron received by them to be carried to different persons. There was no proof that these carters were in the service of the plaintiffs; on the contrary, I understand that they were employed by the persons to whom the iron was to be delivered. Those who could write signed their names, but where they could not write they made their mark,, opposite to which the name was written by a clerk of the plaintiffs. Now if this is to be considered as a receipt, there is no reason why the handwriting or the making of the mark should not be proved. But even if it could be considered as an entry made by the clerk, he should be produced, or proof made that he was dead or out of the power of the court. In consideration of the mode of doing business in the infancy of the country, when many people kept their own boohs, it has been permitted from the necessity of the case, to offer these books in evidence. But when no such necessity exists, when the fact is that clerks have been employed and the entries made by them, there is no cause for violating that wise principle, that no man shall be al
When the second exception, signed by the two associate judges, and not by the president, was taken, the book was supported by the evidence of a witness who gave testimony, that to the best of his knowledge this book was kept according to the custom of ironmasters. We do not think that any such custom was well proved. The witness had only been clerk a year and a half at one furnace, and a few weeks at another. But even if it had been better proved, the court are of opinion that it would be going too far to give the force of law to a practice, which would tend to charge the purchasers of iron with large sums of money, for iron delivered to carters, who gave written receipts, without either proving that those carters were in the employ of the purchasers, or that they signed the receipts in the books of the seller. It may have been the custom to take receipts in the manner these are taken; and it appears to be a very prudent custom, if you add to it the precaution of making the carter produce an order from the purchaser, before the iron is delivered; but it has not been the practice of courts of justice to admit such receipts as evidence, without more corroborating testimony than was offered in this case.
The opinion of the court is, that the evidence was improperly admitted, and consequently the judgment of the Court of Common Pleas must be reversed.
Judgment Reversed.
