The only proof made in the court below, was that the plaintiff had no clerk or book-keeper, and that persons dealing with him had settled with him by his books. There is no evidence either that the defendant dealt with him, or of the delivery of any one of the articles named in the bill of items. The courts have required, in similar cases, that a foundation should be laid for the introduction of this kind of evidence, which consists of proof that the plaintiff had no clerk; that some of the articles charged have been delivered ; that the books produced are the account-books of the party; and that he keeps fair and honest accounts, and this by those who have dealt and settled with him. (Per curiam, Voburgh a. Thayer, 12 Johns., 461; Lemuel a. Sutherland, 11 Wend., 568.)
The admissibility of the books, on such proofs, is put upon the ground of necessity, arising from the former incompetency of the claimant to be a witness in his own behalf. The reason of the rule seems to have been destroyed by the act of the Legislature, authorizing the examination of parties in their own behalf; but, however that may be, the testimony on behalf of the plaintiff was not sufficient to make the book produced evidence, and the judgment must be reversed. There was neither evidence that the defendant dealt with the plaintiff, nor of the delivery of any of the articles.
Daly, F. J.In Morrill a. Whitehead (4 E. D. Smith, 239), it was proved that the books produced were the account-books of the party ; that he had no clerk, and that he kept fair and honest accounts ; but as there was no proof that any one of the services entered in the book had been actually rendered, we reversed the judgment. This is the first case in this State that *397has gone, I think, that length, or in which it was distinctly determined that some of the articles or services charged in the account must be shown to have been actually delivered or rendered ; though it has been frequently intimated that that proof was essential before the books could be received or used in evidence. (Vosburgh a. Thayer, 12 Johns., 461; Sickles a. Mather, 20 Wend., 76 ; Foster a. Coleman, 1 E. D. Smith, 86.) The decision in Morrill a. Whitehead is decisive of the present case, as the only proof before the justice here was that the plaintiff had no clerk, and that persons who had dealt with him and had settled by his books had found them to be correct.
But even if this proof had been supplied, I am of opinion that it would not now be sufficient to authorize a judgment. ■ The practice of allowing the party’s books of accounts to be received as sufficient evidence of the existence of the debt, which was contrary to the English rule (3 Blackst. Com., 368 ; Marriage a. Lawrence, 3 Barnw. & Ald., 142), came into use in this State and in Yew Jersey with the early Dutch colonists, in wh*se courts merchants and traders were always allowed to exhibit their books of accounts, where it was acknowledged or proved that there had been a dealing between the parties,—provided the books had been regularly kept, with the proper distinction of persons, things, year, month, and day. Full faith and credit were then given to them, especially where they were strengthened by the oath of the party, or where the creditor was dead. (See account of the Dutch tribunals of New York, in Introduction to 1 E. D. Smith's Reports.) And the practice, long established in the Eastern States, of receiving such books as evidence, is presumed to have been introduced by the English colonists from Holland, who settled New England. (Per Brainard, J., in Beach a. Mills, 5 Conn., 496.)
In the Dutch colonial courts, the parties appeared before the court and made their own statement, and if they differed as to a fact which the court thought material, either party might be put to his oath; so that the objection made to this species of evidence was, in these tribunals, of less force, as the party who made the entries could be interrogated in respect to the truth or correctness of each item. In Yew England, they very wisely retained the feature of the suppletory oath of the party substantiating the truth of the entries, in connection with the practice of allowing *398such books as evidence; and where the matter is not regulated by statute, which is the case in Maine and Rhode Island, long usage has established that the books of account must be supported by the oath of the party (3 Griff. Law Reg., 1005 ; Ib., 116 ; 3 U. S. Intell., 227).
In Case a. Porter (8 Johns., 211), the practice of allowing the entries of the parties made in the-usual course of business to be received as evidence, was recognized - as a usage established in the courts of this State. It was declared to be contrary to the course of the common law,—a circumstance that greatly embarrassed the court, finding, as they expressed it, that the usage had crept in, and that it was difficult or impossible in many cases to give proof of a sale and delivery. They adverted to the custom in other countries of requiring, in respect to such evidence, the Buppletory oath of the party to give it full effect, but declared that they had no authority to require or admit the oath of the party; and, instead of doing one thing or the other, either repudiating the practice as contrary to the common law, or else holding that it had been the law from the early settlement of the colony, and was therefore not affected by the provision of the constitution retaining such parts of the common law as formed the law of the colony before the Battle of Lexington, they simply said that if this mode of proof was to be tolerated, the partj’-’s books could not be used to prove charges for cash lent. This was leaving the whole question unsettled, and consequently it speedily came before the Supreme Court again in Vosburgh a. Thayer (12 Johns., 465), when the court divided. Platt, J., delivered g, long opinion, declaring that it was repugnant to the common law. lie condemned the courts of Hew England and the State of Pennsylvania for adopting a rule of the civil law instead of the English rule; declared that by our law a party could not be allowed to swear to his accounts; that the rule, even with that qualification or condition, would be no security against false accounts, and predicted that the recognition of such a practice upon the plea of necessity would be followed by most mischievous consequences.
But the other members of the court, in an opinion per ewriam, thought that the usage and the necessity of admitting such proof had been too long sanctioned and felt in our courts, and that it was then too late to question its admissibility ;• but instead of *399simply recognizing the practice as it had prevailed in the Dutch tribunals, and declaring that the party should or could be examined under oath as to the truth or correctness of the entries made by him, they devised, as a test and safeguard, the special preliminary proof, which has since been required as a condition precedent to the admission of the books,—influenced, no doubt, by what was said by the whole court in the former case, and what was strongly insisted upon by Judge Platt in his dissenting opinion, that they had no authority to require, and could not admit a party to be sworn as a witness.
The examination of these cases will show that the court had no very clear conception of the nature of the question before them, which was simply whether this practice was the law of the colony before the Revolution; for if, by long usage and general adoption, it had, before that event, become the recognized mode of proving facts in certain cases, then it was the law of the colony instead of the opposite English rule, which, being repugnant, was not in force at the breaking out of the Revolution, and was consequently not embraced in the retaining clause of the constitution. If they had known—which they probably did not know—■ that the rule which they found in use had existed from the time of the Dutch, and had been in practical operation for more than one hundred years, they would have found an easy solution of the difficulty by simply declaring, as the Hew England courts had done, that it had been in use from the earliest period of the colony, and had thus grown into a common law by general acquiescence and long-established usage. This conclusion would have relieved them from all difficulty in respect to the feature, by which the suppletory oath or examination of the party as to the truth of the entries might be required; for, as it formed just as much a part of this course of procedure as any other, and rested upon the same general authority—long-settled usage—they had nothing to do but to recognize the whole.
But instead of doing this, they looked into the English books and found that Lord Holt had said twice, at Nisi Prius (Pitman a. Madox, Holt, 298; and Price a. The Earl of Torrington, 1 Salk., 285), that a tradesman’s shop-book was not of itself evidence, without something more, and they undertook to supply what that “ something more” should be. It was the rule of the common law that the party to the record could not be a witness, *400and Blackstone had declared (3 Com., 368) that the practice abroad, of allowing a merchant’s boobs with his suppletory oath to amount at all times to full proof, was a distortion of the civil law, in which, it may be remarked, he was mistaken; for to make the books sufficient evidence, in countries where the civil law prevails, something more than the suppletory oath of the party is requisite. (Domat, part 1, b. 3, § 2, art. 9; Meyer's Institutiones Judicaries, 1. 14, p. 387, cod. 4, 19, 5, 7; Code Civil, 1. 3, 73, § 5, art. 1367.) The judges no doubt concluded from the rule of the common law, and from Blaclcstone’s interpretation of the civil law, that the oath or examination of the party in substantiation of the entries could not be allowed. But feeling the imperative necessity of permitting in certain cases the books, when kept by the party, to be used as instruments of evidence, or rather the injustice and absurdity of not allowing them to be taken into consideration at all, they evidently thought that the usage which they found existing might be recognized, and the requirement of Lord Holt satisfied by the preliminary proofs which they devisee! and required as a condition precedent to giving the books in evidence. Hew Jersey and Georgia appear to be the only States that have imitatéd the example of Hew York. In fourteen of the States, either by statute or by the recognition of the courts, the oath of the party is required in corroboration of the entries, while in five' of the States the books are not allowed to be given in evidence at all. (Nelly a. Holmes, 3 Ala., 642; De Camp a. Vandegroft, 4 Blackf., 272, and cases collected in note 201; 3 Cow. and Hill's Notes to Phillips' Ev., 3d ed., 297, and in note to 1 Greenleaf's Ev., § 117.)
But the important change recently made in the law of this State, by which a party may testify the same as any other witness, has obviated the difficulty that was supposed to exist when the rule above referred to was made, and there is now no occasion for resorting to the books, unless it may be to refresh the party’s memory as to the items, or in cases where there is a failure of recollection. In the latter case, the books, if they contain the original entries of the transaction, would still, I apprehend, be evidence within the rule recognized in Merrill a. Ithaca & Oswego Railroad Company (16 Wend., 686); that is, if the party who made the entries has entirely forgotten the facts which *401he recorded, hut can swear that he would not have entered them if he had not known them at the time to be true, and that he believes them to be correct. But I agree with Judge Brady, that the hooks, except in the cases above put, can no longer be received as sufficient evidence of the sale and delivery of goods, or of the performance of services, by merely proving the preliminary facts which heretofore made them sufficient evidence; but that the party, if he have no other means of establishing the facts, must go upon the stand as a witness, resorting to his books only where it is necessary to refresh his memory as to the items, or where, from a failure of recollection, he is compelled to rely upon them alone, and can swear to what is required to warrant their introduction as evidence to be submitted to the tribunal that is to pass upon the facts.
Judgment reversed.