NOT ADMISSIBLE TO PROVE INDEPENDENT MATTERS. 463 mediate days had elapsed, between the date of the transaction and the time of inserting an entry of it in the book, the evidence has been rejected (n); and in one American case, the interval of a single day was held to constitute a valid objection (o). § 494. Secondly, we have seen that declarations against interest are often admissible to prove independent matters, which, though forming part of the entry, are not in themselves against the interest of the declarant (p). A stricter rule, however, prevails with respect to official or business entries, and it has been held that "whatever effect may be due to an entry made in the course of office, reporting facts necessary to the performance of a duty, the statement of other circumstances, however naturally they may be thought to find a place in the narrative, is no proof of those circumstances" (q). In the case which called forth these observations, it became necessary to show in what place the plaintiff had been arrested; and in order to do this, a certificate of a deceased sheriff's officer, which had been returned by him to the office in the ordinary routine of his duty, and which specified, among other circumstances connected with the arrest, the spot where it took place, was tendered in evidence; but the judges of the Exchequer Chamber, before whom the question was argued on a bill of exceptions,-while they admitted, for the sake of argument, that the certificate was evidence of the arrest itself, as also of the day when it was made, since it might be necessary for the officer to make known these facts to his principal,—were all clearly of opinion that it could not be received to show the particular spot where the caption took place, that circumstance being merely collateral to the duty done (r). "This decision," as was afterwards observed by Mr. Justice Park, "turned on the circumstance that the sheriff's officer was going beyond the sphere of his duty when he made an entry of the place of arrest, and that such an entry therefore had no claim to be received as evidence of that fact" (s). (n) Forsythe v. Norcross, 5 Watts, 432. (0) Walter v. Bollman, 8 Watts, 544. (p) Ante, §§ 472, 473. (9) Chambers v. Bernasconi, 1 C. M. & R. 368, per Lord Denman, pronouncing the unanimous opinion of the Ex. Ch. (r) Chambers v. Bernasconi, 1 C. M. & R. 347, 368 ; 4 Tyrwh. 531, S.C. 464 HOW FAR CORROBORATIVE EVIDENCE NECESSARY. § 495. Some persons contend that the rule under discussion is subject to a third qualification, which certainly does not apply to declarations against interest, and which is to this effect;-namely, that entries made in the course of office or business cannot be admitted, unless corroborated by other circumstances which render it probable that the facts therein recorded really occurred. This opinion seems to rest, partly on a supposed dictum of Mr. Justice Taunton (t); partly on a misapprehension of the rule adopted by Mr. Justice Parke, that an entry made in the course of business is admissible "where it is one of a chain or combination of facts, and the proof of one raises a presumption that another has taken place" (u); and partly on the circumstance, that, in one or two of the later cases on the subject, confirmatory evidence has in fact been adduced, and its existence has been noticed by the Court as tending to establish the correctness of the entry (v). Still, we consider that Mr. Phillipps is right in rejecting this qualification ; and we submit, with him, that, though corroborative evidence must naturally add to the value of entries, it cannot be deemed essential to their admissibility (w). § 496. It has further been urged that entries in the course of business will only be received, when the nature of the case is such as to render better evidence unattainable; but this limitation of the rule has been expressly rejected in Poole v. Dicas, where Chief Justice Tindal, after observing that Doe v. Turford was no authority for the proposition, since in that case persons might have been present when the notice was served, continued thus:-"In the present case, it would operate as a great hardship to require (t) Doe v. Turford, 3 B. & Ad. 898, where his Lordship is made to say, “ A minute in writing like the present, made at the time when the fact it records took place, by a person since deceased, in the ordinary course of his business, corroborated by other circumstances which render it probable that* that fact occurred, is admissible in evidence. Those corroborating circumstances must be proved; and here many such circumstances did appear." Mr. Phillipps suggests that the words, "the entry was made when," have probably been omitted by accident at the place marked with the star. 1 Ph. Ev. 324. (u) Doe v. Turford, 3 B. & Ad. 897. (v) Id. 890, 897; Poole v. Dicas, 1 Scott, 600; 1 Bing. N. C. 649, 653, 654, S.C. (2) 1 Ph. Ev. 324. See R. v. Cope, 7 C. & P. 726, 727, per Lord Denman. OFFICIAL DECLARATIONS-WHEN ADMISSIBLE. 465 the testimony of the persons who might have been present. The clerk who presented the bill could scarcely, at the distance of two years, point out who it was that answered his application; and if it were necessary to call all the persons who resided at the place of presentment, the expense and inconvenience would be enormous. The rejection of the evidence which has been received would be a great injury to the commercial classes, by casting an unnecessary difficulty on the holders of bills of exchange” (x). § 497. From the cases cited above it may be collected, that, in order to bring a declaration within the present exception, proof must be given that it was made contemporaneously with the fact which it narrates, and in the usual routine of business, by a person whose duty it was to make the whole of it, who was himself personally acquainted with the fact, who had no interest in stating an untruth, and who is since dead; and, provided all the terms of this proposition be satisfied, it seems to be immaterial, excepting so far as regards the weight of the evidence, that more satisfactory evidence might have been produced, that the declaration is uncorroborated by other circumstances, or that it consists of a mere verbal statement, which has never been reduced to writing. In support of this last point no direct decision can be cited, since all the cases on the subject relate to written entries; but, as we have before suggested (y), the law appears to recognise no valid distinction between written and verbal statements; and in the Sussex Peerage case, Lord Campbell, no mean authority, expressly stated, that "where a declaration by word of mouth, or by writing, is made in the course of the business of the individual making it, then it may be received in evidence, though it is not against his interest" (z). § 498. In the United States this principle has been carried further than in England, and has been extended to entries made by the party himself in his own shop-books (a); at least, where (x) 1 Bing. N. C. 654. The same rule prevails with respect to declarations against interest, ante, § 475. (y) Ante, § 468. (~) 11 Cl. & Fin. 113. (a) In the following States the admission of the party's own books, and his own entries, has been either expressly permitted, or recognised and regulated, by H H 466 ENTRIES MADE BY PARTY IN SHOP-BOOK. they were evidently contemporaneous with the facts to which they refer, and formed part of the res gestæ. Being the acts of the party himself, they are received with the greater caution; but still they may be seen and weighed by the jury (b). Though this statute; viz. Vermont, (1 Tolman's Dig. 185); Connecticut, (Rev. Code, 1821, 93, tit. 9, § 1); Delaware, (stat. 25 Geo. 2, Rev. Code, 1829, p. 89); Maryland, as to sums under ten pounds in a year, (1 Dorsey's Laws of Maryland, 73, 203); Virginia, (stat. 1819, 1 Rev. Code, ch. 128, §§ 7, 8, 9); North Carolina, (stat. 1756, ch. 57, § 2, 1 Rev. Code, 1836, ch. 15); South Carolina, (stat. 1721, Sept. 20. See Stat. at Large, vol. iii., p. 799, Cooper's ed. 1 Bay, 43); Tennessee, (Stat. Tennessee, by Carruthers & Nicholson, 131). In Louisiana, and in Maryland (except as above), entries made by the party himself are not admitted. Civil Code of Louisiana, Art. 2244, 2245; Johnson v. Breedlove, 2 Martin, N. S. 508. Herring v. Levy, 4 Martin, N. S. 383; Cavelier v. Collins, 3 Martin, 188 ; Owings v. Henderson, 5 Gill & Johns. 134, 142. In all the other States they are admitted at common law, under various degrees of restriction. See Cogswell v. Dolliver, 2 Mass. 217; Poultney v. Ross, 1 Dall. 239; Lynch v. McHugo, 1 Bay, 33; Foster v. Sinkler, id. 40; Slade v. Teasdale, 2 Bay, 173; Lamb v. Hart, id. 362; Thomas. Dyott, 1 Nott & McC. 186; Burnham v. Adams, 5 Verm. 313; Story Conf. Laws, §§ 526, 527. (b) The rules of the several States in regard to the admission of this evidence are not perfectly uniform; but in what is about to be stated, it is believed that they concur. Before the books of the party can be admitted in evidence, they are to be submitted to the inspection of the Court; and if they do not appear to be a register of the daily business of the party, and to have been honestly and fairly kept, they are excluded. If they appear manifestly erased and altered, they will not be admitted, until the alteration is explained, Churchman v. Smith, 6 Whart. 106. The form of keeping them, whether it be that of a journal or ledger, does not affect their admissibility, however it may go to their credit with the jury. Cogswelle. Dolliver, 2 Mass. 217; Prince v. Smith, 4 Mass. 455, 457; Faxon v. Hollis, 13 Mass. 427; Rodman v. Hoops, 1 Dall. 85; Lynch v. McHugo, 1 Bay, 33; Foster v. Sinkler, id. 40; Slade v. Teasdale, 2 Bay, 173; Thomas v. Dyott, 1 Nott & McC. 186; Wilson v. Wilson, 1 Halst. 95; Swing v. Sparks, 2 Halst. 59; Jones v. De Kay, Pennington, R. 695; Cole v. Anderson, 3 Halst. 68. If the books appear free from fraudulent practices, and proper to be laid before the jury, the party himself is then required to make oath, in open court, that they are the books in which the accounts of his ordinary business transactions are usually kept, Frye v. Barker, 2 Pick. 65. An affidavit to an account or bill of particulars is not admissible, Waggoner v. Richmond, Wright, Rep. 173. Whether, if the party is abroad, or is unable to attend, the Court will take his oath under a commission, is not perfectly clear. The opinion of Parker, C. J., in 2 Pick. 67, was against it; and so is Nicholson v. Withers, 2 McCord, 428; but in Spencer. Saunders, 1 Bay, 119, even his affidavit was deemed sufficient, upon a writ of inquiry, the defendant having suffered judgment by default. See also Douglas v. Hart, 4 McCord, 257; Furman v. Peay, 2 Bail. 394. He must also swear, that the articles therein charged were actually delivered, and the labour and services actually performed; that the entries were made at or about the time of the ENTRIES MADE BY PARTY ADMISSIBLE IN AMERICA. 467 American doctrine is not in accordance with the principles of the common law, it is with those of other systems of jurisprudence. In transactions, and are the original entries thereof; and that the sums charged and claimed have not been paid, 3 Dane's Abr. ch. 81, art. 4, §§ 1, 2; Cogswell v. Dolliver, 2 Mass. 217; Ives v. Niles, 5 Watts, 324. If the party is dead, his books, though rendered of much less weight as evidence, may still be offered by the executor or administrator, he making oath that they came to his hands as the genuine and only books of account of the deceased; that to the best of his knowledge and belief the entries are original and contemporaneous with the fact, and the debt unpaid; with proof of the party's handwriting. Bentley v. Hollenback, Wright, Rep. 169; McLellan . Crofton, 6 Greenl. 307; Prince v. Smith, 4 Mass. 455. The book itself must be the registry of business actually done, and not of orders, executory contracts, and things to be done subsequent to the entry. Fairchild v. Dennison, 4 Watts, 258; Wilson v. Wilson, 1 Halst. 95; Bradley v. Goodyear, 1 Day, 104, 106; Terill v. Beecher, 9 Conn. 344, 348, 349; and the entry must have been made for the purpose of charging the debtor with the debt; a mere memorandum for any other purpose not being sufficient. Thus, an invoice-book, and the memoranda in the margin of a blank check-book, showing the date and tenor of the checks drawn and cut from the book, have been rejected. Cooper v. Morrell, 4 Yeates, 341; Wilson v. Goodin, Wright, Rep. 219. If the book contains marks, showing that the items have been transferred to a journal or ledger, these books also must be produced. Prince v. Swett, 2 Mass. 569. The entries also must be made contemporaneously with the fact entered. Entries thus made are not, however, received in all cases as satisfactory proof of the charges; but only as proof of things which, from their nature, are not generally susceptible of better evidence. Watts v. Howard, 7 Metc. 478. They are satisfactory proof of goods sold and delivered from a shop, and of labour and services personally performed; Case v. Potter, 8 Johns. 211; Vosburg v. Thayer, 12 Johns. 461; Wilmer v. Israel, 1 Browne, 257; Ducoign v. Schreppel, 1 Yeates, 347; Spence v. Saunders, 1 Bay, 119; Charlton v. Lawry, Martin, N. Car. Rep. 26; Mitchell v. Clark, ib. 25; Easby v. Aiken, Cooke, R. 388; and, in some States, of small sums of money. Cogswell v. Dolliver, 2 Mass. 217; Prince v. Smith, 4 Mass. 455, 3 Dane's Abr. ch. 81, art. 4, §§ 1, 2; Craven v. Shaird, 2 Halst. 345. The amount, in Massachusetts and Maine, is restricted to forty shillings. Dunn v. Whitney, 1 Fairf. 9; Burns v. Fay, 14 Pick. 8; Union Bank v. Knapp, 3 Pick. 109. But they have been refused admission to prove the fact of advertising in a newspaper, Richards v. Howard, 2 Nott & McC. 474; Thomas v. Dyott, 1 id. 186; of a charge of dockage of a vessel, Wilmer v. Israel, 1 Browne, 257; commissions on the sale of a vessel, Winsor v. Dillaway, 4 Metc. 221; labour of servants, Wright v. Sharp, 1 Browne, 344; goods delivered to a third person, Kerr v. Love, 1 Wash. 172; Tenbrook v. Johnson, Coxe, 288; Townley v. Woolley, ib. 377; or to the party, if under a previous contract for their delivery at different periods, Lonergan v. Whitehead, 10 Watts, 249; general damages or value, Swing v. Sparks, 2 Halst. 59; Terill v. Beecher, 9 Conn. 348, 349; settlement of accounts, Prest . Mercereau, 4 Halst. 268; money paid and not applied to the purpose directed, Bradley v. Goodyear, 1 Day, 104; a special agreement, Pritchard v. McOwen, 1 Nott & McC. 131, n.; Dunn v. Whitney, |