work done, and it must be made when the party making it is authorized, with an intent to charge the person against whom it is made. 138

The entries made by the party himself are admissible at common law only from the necessity of the case, and will not be allowed if other evidence can be had to prove the delivery of the goods.139 The statutes of most of the states now allowing the parties to testify in all civil cases, such entries are subject to the same rules as those made by a clerk."

140

3141. When the entries have been made by a clerk or other authorized person from the report of others, this kind of evidence is in the nature of hearsay; for when the clerk swears he made the entry at the time it bears date, he only establishes the fact that he made a record of what another told him, and that the book contains the statement of what was then told him. But when the entry was made by the person who sold and delivered the goods, or performed the work, whether as a principal or an agent, then the evidence assumes another character; it is a memorandum of a fact actually known to him, which he has not heard from others. Then the entry acquires a value from this circumstance, that it was contemporaneous with the principal fact done, forming a link in the chain of events, and being a part of the res gesta.

When the entry has been made by a clerk or other authorized agent, the proof of such entry must be made by the clerk or agent himself, if he can be procured, but if he be dead 141 or insane,142 his hand writing may be proved by any one acquainted with it.143 But the plaintiff is not competent in such case to prove the hand writing of his deceased clerk.14

144

When the entry has been made by the plaintiff himself, he can in general prove the fact, although he is a party on record, contrary to the general rule that an interested person cannot be examined as a witness. This rule has been adopted with some limitations in perhaps most of the states of the Union.145 Though not in accordance with the ancient common law of England, this rule, which was adopted from the necessity of the case, as in the early settlement of America many persons could not keep clerks, is in conformity146 with other

137 Rhoads v. Gaul, 4 Rawle, Penn. 404. 138 Waller v. Bollman, 8 Watts, Penn. 545. 3, 5; Ingraham v. Bockius, 9 Serg. & R. Penn. 139 Dodson v. Sears, 25 Ill. 513; Landis v. Mich. 476.

140 Swain v. Cheney, 41 N. H. 232.

See Curran v. Crawford, 4 Serg. & R. Penn. 285; Cook v. Ashmead, 2 Miles, Penn. 268. Turner, 14 Cal. 573; Jackson v. Evans, 8

141 His absence beyond the jurisdiction of the court, or beyond the reach of process, is not enough. Kennedy v. Fairman, 1 Hayw. No. C. 458; Whitfield v. Walk, 2 Hayw. No. C. 24; Wilbur v. Selden, 6 Cow. N. Y. 162. But in some cases the permanent absence of the clerk from the state has been holden sufficient to let in proof of his hand writing. Elms v. Chevis, 2 M'Cord, So. C. 350; Tunno v. Rogers, 1 Bay, So. C. 480.

142 Union Bank v. Knapp, 3 Pick. Mass. 96. 143 Hay v. Kramer, 2 Watts & S. Penn. 137.

141 1 Browne, Penn. App. liii.

145 The practice of receiving such evidence is said by a learned judge to be" founded on a moral necessity. The whole commercial world," he says, "has in substance the same thing. The principles of it, I believe, were introduced into this country from Holland by the first settlers of New England. Its origin doubtless was in commercial transactions, but its use became necessary between man and man in the common intercourses of life." Per Brainard, J., in Beach v. Mills, 5 Conn. 496. In some of the states the rule has been established by a species of necessity and the decisions of the courts; in others, this kind of evidence is regulated by statutes, but their provisions vary very much in their details. See 1 Phillipps, Ev. 266, and note by Cowen & Hill, number 491; 1 Greenleaf, Ev. & 118,

note 1.

146 By the Roman law, a merchant's or tradesman's books of accounts, regularly and fairly kept in the usual manner, were deemed presumptive evidence, and with the suppletory oath of the party, full proof of his claim. 1 Greenleaf, Ev. 119. By the law of France, the books of merchants and tradesmen are required to be kept regularly, and written from day to day, without any blank, and seen and approved, (paraphés et visés,)

systems of jurisprudence. When the plaintiff who made the entries is dead evidence of his hand writing will be received.147

In all cases the charge must be proved to be an original entry, and not a mere transcript from another book; but when there is a mark showing that the entry has been posted into another book, commonly called the ledger, that must also be produced.

3142. The book of original entries, when proved by the suppletory oath or affirmation of the person who made the entry, or by proof of his hand writing as above mentioned, is prima facie evidence of the sale and delivery of goods or of work and labor done,148 for the books and the suppletory oath are not conclusive; the testimony is still to be weighed by the jury, like any other in the cause, and the witness who makes such suppletory oath is subject to have his reputation for truth assailed equally with any other witness.149 This is confined to personal property; a charge of a sale, or use, or occupation of real estate would have no effect.150 The goods may have been sold and delivered to the defendant himself or to his agent under an express or implied authority to buy them, and therefore necessary goods supplied to a man's wife or children are properly charged.

154

Although fully proved by the suppletory oath of the person who made the entry, such book is not evidence in many cases from the nature of the thing charged.15 For example, a charge of money lent or cash paid,152 the time a vessel lay at plaintiff's wharf, the delivery of goods to be sold on commission, commissions on the sale of a vessel,15 a delivery of goods under a special agreement,156 delivery of goods to a third person; but where the delivery of goods to such a person is proved to have been made by order of the buyer, by competent evidence aliunde, the delivery itself may be proved by the books and suppletory oath of the plaintiff in any case where the delivery to the defendant in person might be so proved.157

3143. Many entries made in proper books in the ordinary course of business are admitted in evidence upon the ground that they are contemporaneous with the transaction they record. The letter book of a merchant, party in the cause, has been admitted as prima facie evidence of the contents of a letter addressed by him to the other party after notice to produce the original, for merchants

at least once a year, by certain designated officers. When a merchant's or tradesman's books are so kept, and he is a man of probity, they are admitted as semi-proof, presumptive evidence, and, with his suppletory oath, as full proof of his claim. Code de Com. art. 8 to 13. In Scotland, merchants' books, when properly kept, may be received in evidence with the "oath in supplement," as full proof; but a course of dealing, or other pregnant circumstances, must first be shown by proof aliunde. Tait, Ev. 273–277; 1 Bell, Comm. 331, 5th ed.; Glassford, Evidence, 550.

147 McLellan v. Crofton, 6 Me. 307; Odell v. Culbert, 9 Watts & S. Penn. 66; Bently v. Hollandbach, Wright, Ohio, 169; Prince v. Smith, 4 Mass. 455.

148 1 Swift, Ev. 84; Case v. Porter, 8 Johns. N. Y. 211; Vosburg v. Thayer, 12 Johns. N. Y. 261; Ducoign v. Schreppel, 1 Yeates, Penn. 347; Wilmer v. Israel, i Browne, Penn. 257; Charlton v. Lecory, Mart. No. C. 26.

149 Kitchen v. Tyron, 2 Murph. No. C. 314; Elder v. Warfield, 7 Harr. & J. Md. 391. 150 Beach v. Mills, 5 Conn. 493. See Dunn v. Whitney, 10 Me. 9; Newton v. Higgins, 2 Vt. 366.

151 In some states, as in Maine and Massachusetts, the amount is restricted to forty shillings, or other small sums. Dunn v. Whitney, 10 Me. 9; Burns v. Fay, 14 Pick. Mass. 8.

152 Maine v. Harper, 4 All. Mass. 115; Rich v. Eldredge, 42 N. H. 153.

153 Wilmer v. Israel, 1 Browne, Penn. 257.

154 Murphy v. Cress, 2 Whart. Penn. 33.

155 Winson v. Dillaway, 4 Metc. Mass. 221.

156 Nickle v. Baldwin, 4 Watts & S. Penn. 290. But see Swain v. Cheney, 41 N. H. 232. 157 Mitchel v. Belknap, 23 Me. 475.

usually keep such a book.158 Contemporaneous entries made by third persons in their own books in the ordinary course of business, the matter being within the peculiar knowledge of the party making the entry, and there being no apparent motive to pervert the fact, are generally received as original evidence, though the person who made them has no recollection of the fact at the time of testifying, provided he swears that he should not have made it if it were not true. 159

Thus in a criminal indictment the charge in the gas company's books against the defendant is competent to prove that he kept the nuisance for which he was indicted.160

158 Pritt v. Fairclough, 3 Campb. 305; Hagedom v. Reid, 3 Campb. 377. See Sturge v. Buchanan, 2 Perr. & D. 573.

159 Bunker v. Shed, 8 Metc. Mass. 150; Briggs v. Rafferty, 14 Gray, Mass. 525. Contra, Barnes v. Simmons, 27 Ill. 512.

160 State v. Mace, 6 R. I. 85.

232

3144. The fourth class of instruments of evidence are witnesses. A witness is one who, being sworn or affirmed according to law, deposes as to his knowledge of facts in issue between the parties in a cause.

The testimony of witnesses can never have the effect of a demonstration, be

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cause it is not impossible; indeed, it frequently happens that they are mistaken, or wish themselves to deceive. There can, therefore, result no other certainty from their testimony than what arises from analogy. When in the calm of the passions we listen only to the voice of reason and the impulse of nature, we feel in ourselves a great repugnance to betray the truth to the prejudice of another, and we have observed that honest, intelligent, and disinterested persons never combine to deceive others by a falsehood. We conclude, then, by analogy, with a sort of moral certainty, that a fact attested by several witnesses worthy of credit is true. This proof derives its whole force from a double presumption. We presume, in the first place, on the good sense of the witnesses that they have not been mistaken; and, secondly, we presume on their probity that they wish not to deceive. To be certain that they have not been deceived and that they do not wish to mislead, we must ascertain as far as possible the nature and the quality of the facts proved, the quality and the person of the witness, and the testimony itself by comparing it with the deposition of other witnesses or with known facts.

This head will be divided into three sub-divisions: the means used to obtain the attendance of witnesses, the character of the witness, and the number of witnesses required by law.

3145. Witnesses may be procured to attend and testify in a case merely by being notified to attend, and if they attend in court, they may be examined, although no process requiring their attendance has been taken out and served on them. But the practice of relying upon witnesses without serving a subpœna upon them is very dangerous, because, if they do not attend, their absence will be no legal cause for putting off the trial or continuing the cause.

The courts of common law have the inherent power to call for all legal proof required to establish the facts in issue between the parties; and they, consequently, possess the authority to summon and compel the attendance of witnesses to come before them and testify as to their knowledge respecting such facts. The process usually employed for this purpose is the writ of subpoena ad testificandum. This writ is directed to the witness, commanding him to appear at court to testify what he knows in the cause therein described, pending in the court out of which it issues, under a penalty mentioned in the writ. When the witness is required to produce papers to be read in evidence, a clause is inserted in the writ commanding him to bring them with him into court, and then the writ is called a subpoena duces tecum.2 In such case the paper should be particularly described, for a direction to produce all letters, papers, and documents touching the matter in dispute can hardly be relied upon.

The writ of subpoena is sufficient to secure the attendance of the witness for one session or term of the court; but if the cause be made a remanet,* that is, it is postponed by adjournment to another term or session, the witness must be subpoenaed anew.

With regard to the service of the subpoena, although regulated by statute and rules of courts in the several states, which vary materially in their details, yet it may be observed that it must be served long enough before the time appointed to allow the witness a sufficient time conveniently to come from his residence to court; and in order to ground a motion for an attachment for the contempt

1 De Benneville v. De Benneville, 1 Binn. Penn. 46; 3 Yeates, Penn. 558.

23 Chitty, Gen. Pr. 830, n.; Amey v. Long, 9 East, 473. A witness may be compelled to produce his private books if required by lawful authority. Burnham v. Morissey, 14 Gray, Mass. 226.

See Fence v. Lucy, Ry. & M. 341.

4 Lee, Dict. of Pr. Trial, vii.; 1 Sellon, Pr. 434; 1 Phillipps, Ev. 4; 1 Greenleaf, Ev. 8 309; 2 Tidd, Pr. 855; Bouv. Law Dict. Remanet.

1 Phillipps, Ev. 4.