dissented : 1, The admission of.the account book of a party, wherein a charge "is entered by himself, to prove .the truth of such charge, without any other, evidence of the particular item, so' charged, Would be an innovation on the established rules of evidence, as adopted by. us from, the English common law, ' .... • .
*463in assumpsit, for a tailor’s bill, (Pitman v. Maddox, 2 Salk. 690.,) Holt, Ch. J., allowed a shop book as evidence, it being proved that the clerk who made the entries was dead, and that those entries were in his handwriting. He said it was as good evidence as the proof of a witness’s handwriting to an obligation ; but he held that such shop book is not) of itself, evidence for the party in whose favour the entries were made.
So, in the case of Price v. Torrington, (1 Salk. 285.,) the same rule was maintained. (See, also, Lewis v. Norton, 1 Wash. 76.)
In the case of Potter v. Case, (8 Johns. Rep. 211.,) the Same doctrine was sanctioned in this court.
The rules of evidence are part of the common law; and in varying those rules, the" legitimate power of the court extends no further than to decide, that, from the varying condition or habits of society, or other causes,' the reason and foundation of the former rule have ceased, or varied; and, therefore, the-old rule must .be modified, or a new rule substituted. To exercise a larger power, would be a usurpation of legislative ati> thority.
I can perceive no such change in the reason of the rule now in question. On the contrary, if there remains any point of similitude between our community and that country from whence we derive this rule ; if we now possess any characteristic habits in common with Englishmen ; they are to be seen in our commercial transactions, and in the dealings between tradesmen and their customers.
y?s=Yn some countries, (and particularly in the Mcw-Englancf states,) the account book is evidence for the party who make* it; but, I believe, wherever this practice- prevails, it is insepm rably connected with another rule, which is, that the charges in the account shall be sworn to by the party claiming the be(ic« fit of such charges.
In the case of Cogswell v. Dolliver, (2 Mass. Rep. 217.,) it, •was ruled, that shop books, verified by the oath of the party, may be given in evidence to a jury. Sedgwick, J., there said, «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, ^yhich it is brought to fortify and confirm.”
*4645o, it appears,, that the principal evidence there,, consists-is the oath of . the party j and that the. account -book is -merely■'7 auxiliary, in corroboration of the oath., .
And, according to Pothier, part iv. art. 2. sect. 4. (Evans's translation, 433.,) by the law.? of France,.-a tradesman’s books “ make a- semi-pro.of, and. the judges often -decide in favour of the demands of tradesmen, by, admitting, their oath as supplying the, defect of -proof arising from their books:”
.. In "Swift's System of the Laws of Connecticut," &c. (page 172.,) he says, “ To admit the books of the parties, without proof to evidence them, .would .produce, the greatest injustice. ' To re-. 'quire- proof of. every article, would - require an - impossibility,': To allow the proof oí part of the articles charged to support the delivery of the whole, Would open thb door to the greatest frauds. It -is best, .-therefore,/to let the-parties in. to. testify,!’ ,&h.
' In the case of Poultney, and others, v. Ross, (1 Dallas, 238.,) Shippen, President, in delivering the opinion, of the court: said, w Though, in England, .the shop book of a tradesman is not evidence of a debt, without the -assistant' oath ■ of the- clerk who? made, the entry, yet .here, from the . necessity .of the ■ ease, ■ as. business, is often earned on-by- the’ principal, and many Of Our. tradesmen .do hot keep clerks,' the book, proved.tipi the oath of-the plaintiff himself, has always been- admitted.” So, also, in Sterritt v. Bull, (1 Binney, 234.)
.' By our jbw, the party is riot-allowed to. swear/ in confirmation of his accounts. Shall w-e, then, adopt part of the new rule,^admitting the account.book as evidence, without the qualifiotiip ilion, (the, sappletory oath,) which,,'.in other countries, has. been*'' ^thought indispensable,- in order to make that rule iokraSl&Y'’ ■ '
* '41'hópe wnshadl'Bevm: allolvpartfes to swear to-their adc'ounts, in our. courts of law: , ' ' •’
■ To permit, a, party to support his, account by Ms.-own oath/ affords, in niy judgment, but little security against -false' accounts ; for the man, whose conscience would permit him, delibes'atqly,v to make a false charge against his neighbour, would seldom hesitate to swear to it. ’ • • ' ;'' ■ , . ,
Nor would I permit a party to defeat a charge against himself, by denying it upon oath j because, i.t'wóufef be to-^isebuv rage fraud in some men, by tempting .others to commit per-’. jury.- •. ."
*465Besides, we have adopted the English common law as a part of our state constitution, subject only to legislative alteration; and that common low is, therefore, more strictly obligatory upon us, than upon our sister states. In adopting a new rule of evidence, in this case, we make the law, instead of expounding it.
We have no right to adopt the French law, and the civil law, in preference to the English rule ; as the courts of Massachusetts, Connecticut, and Pennsylvania, seem to have done. Sir William Blackstone, however, insists that the civil law was conformable to the English rule; and that other nations have. “ distorted it.” (3 Bl. Com. 368.)
2. The new rule now attempted to be introduced, is impolitic and unsafe; inasmuch as no human prudence or foresight can guard against the fraudulent claims of tradesmen, who, by acts of their own mere volition, are permitted to subject a person to the payment of money, on no other additional evidence, than that such person has, on some former occasion, dealf with them on credit; that they do not choose to keep clerks; and that they can produce witnesses to swear, that such tradesmen, in their dealings, have never cheated them. On such proof alone, to compel the opposite party to disprove the charge, or to pay it, would, ip my judgment, be an unreasonable hardship.
No necessity exists for such an alteration of the rule, inasmuch as the tradesman always has it in his power to protect himself, by refusing credit; by keeping a clerk, or servants 5 by calling witnesses, or taking receipts for articles furnished. That a detailed account has been delivered to the party charged, and that lie assented to it, or acquiesced without objection, is sufficient proof of the account, prima facie; and there is in practice, generally, very little difficulty in adjusting the balance of a fair account, before suit brought.
That we and our ancestors, for ages, have lived and enjoyed security, under the old rule, is palpable evidence that no necessity demand.', an alteration. Necessity is a dangerous word,
3dly. The rule, as now proposed to be modified, is very complicate h, 'nd difficult in its application ; and, therefore, extitime.i.7 liable to be misapplied and perverted, especially in just) 02s' . " rs. -.-/here, according to the established rules in regard to feihr; ■; aside verdicts, infinite frauds and oppression *466may v be screened, by the latitudináry powers of juries in.-iber application of such,a complex rule. The .case would seldom^. j.n¿ee¿j. occur, where this court,couldj' on justifiable grounds, control the- verdict of a jury upon the' point now. under consideration. I think, therefore, the judgment of. the court below, ought to be reversed* . ’ , 1 , . ;
■Judgment áffirmedv(a)
Vide Thomas & Foster v. Sinker,(1 Bay's Rep. 40.) Linch v. M'Hugo, (Id. 33.) Spencer v. Sanders, (Id. 119) Tunno v. Rogers, (Id. 480.) Slade v. Teasdale, (2 Bay's Rep. 172.) Lamb v. Hart, (Id. 362.) Tomlins and others v. How, (1 Wash Rep. 190—191.)