페이지 이미지
PDF
ePub

quiescence and long-established us- by himself submitted them to the age.

court for inspection, and, if they The court further said: “But in- did not appear to be a register of stead of simply recognizing the the daily business of the party and practice as it had prevailed in the to have been honestly and fairly Dutch tribunals, and declaring that kept, they were rejected. If an the party should or could be exam- erasure or alteration in a material ined under oath as to the truth or part appeared, it was necessary to correctness of the entries made by explain the erasure or alteration behim, they devised, as a test and safe- fore the books could be admitted. guard, the special preliminary

preliminary If the books passed the inspection proof which has since been required of the court, the party himself was as a condition precedent to the ad- required to make oath in open court mission of the books."

that they were the books in which Under the New England form of the accounts of his ordinary business the shopbook rule, books of accounts transactions were usually kept; that kept by a party himself were re- the entries were made at or about ceived in evidence when supported the time of the transactions, and by his suppletory oath. Union were the originals, and were corBank v. Knapp, 3 Pick. 96, 15 Am. rectly made; that the goods therein Dec. 181; Missouri P. R. Co. v. charged were actually delivered to Johnson, —

Tex. —, 7 S. W. 838. the defendant, or that the services This was in imitation of the supple- therein charged were actually pertory oath of the civil law. 3 BI. formed for the defendant; and that Com. 369, 370; Conklin v. Stamler, the sums charged and claimed had 17 How. Pr. 399; 37 Cyc. 606. The not been paid. 1 Greenl. Ev. 15th oath was administered to the party ed. p. 183, note 2. in court. Frye v. Barker, 2 Pick. The practice of receiving as evi65; 4 Chamberlayne, Ev. § 3082. dence books of accounts kept by a In jurisdictions where the supple- party was repudiated by a very few tory oath was administered, a party courts, and followed with reluctance could not be a "general witness,' by some (notes in 138 Am. St. Rep. nor could he tell about the contract 441 and 52 L.R.A. 545), but it will price or the value of the articles be found that most of the courts sold or services rendered, but he adopted some form of the shopbook was restricted to testimony relative rule; and it is a noteworthy fact, to the delivery of the articles sold, too, that in the jurisdictions beyond or the rendition of services, the cor- New England and New York, the rectness of the entries made, and to courts in the main adopted either testimony that the books were reg- the New York or the New England ularly and accurately kept. Mitch- form of the shopbook rule. The ell v. Belknap, 23 Me. 475; Mathes form of rule observed in a few v. Robinson, 8 Met. 269, 41 Am. Dec. courts presented some variations; 505; Dwinel v. Pottle, 31 Me. 167;

as, for example, Hooker v. Johnson, 4 Chamberlayne, Ev. $$ 3082, 3144;

6 Fla. 730; Neville v. Northcutt, 7 2 Wigmore, Ev. § 1554; 2 Enc. Ev.

Coldw. 294; Forsee v. Matlock, 7 629; Cummings v. Nichols, 13 N. H.

Heisk. 421. See also 4 Chamber420, 38 Am. Dec. 501. See also Vosburgh v. Thayer, 12 Johns. 461,

layne, Ev. $ 3082; but, stated broad463; 4 Chamberlayne, Ev. § 3055; 1

ly, the rules adopted by the different Pa. L. J. 105. The New England

courts may be appropriately asrule was followed in other jurisdic- signed, because of their distinguishtions outside of New England.

ing characteristics, either to the Under the rule, which, for con- New York or to the New England venience, we have designated as the classification. Thus far we have New England rule, a party wishing been discussing the rule applicable to introduce books of accounts kept to books of accounts kept by a par

[ocr errors][ocr errors][ocr errors][ocr errors]

(105 Or. 559, 210 Pac. 863.) ty at a time when he was disquali- Alabama, Code (Ala.) 1907, § 4003; fied to testify as a witness.

Georgia, Park's Anno. Code (Ga.) The disqualification which for- 1914, § 5769 (see also Bracken v. merly precluded a party from testi- Dillon, 64 Ga. 243, 37 Am. Rep. 70); fying as a witness has been quite New Mexico, Anno. Stat. (N. M.) generally removed, and at the pres- 1915, $ 2187. ent time a party can in most states Although some of the presenttestify without any more restric- day legislation relative to the use of tions than are imposed upon other books of accounts follows more or witnesses. Notwithstanding the less closely the New York doctrine, shopbook rule traces its origin to a it will be found, upon examination judicial recognition of the neces- of existing statutes, that most of the sity created by the disqualification statutes now in force in the United of a party to testify as a witness, States, so far as they relate to the the removal of that disqualification foundation required to be laid for has not, except in a few jurisdic- the introduction of the books, contions, prevented the operation of tain so many of the features of the the rule or produced any material New England doctrine that it can limitations upon it. The doctrine be appropriately said that most of of consistency might seem to lead to the present-day legislation is in acthe abolition of the rule upon the cord with the New England rather removal of the reason that produced than with the New York rule. A the rule; but granting to a party the number of states, including several right to testify as a witness has, ex- western states, have no legislation cept in rare instances, had no appre- regulating the use of shopbooks; ciable influence upon the applica- and, while one of such western tion of the shopbook rule. 10 R. C. states requires evidence showing L. 1173; note in 138 Am. St. Rep. that a party kept no clerk, as is re444; 4 Chamberlayne, Ev. $ 3068. quired by the New York rule, nearAt the present time nearly every ly all the remainder of such western state in the Union, by virtue of a states seem to recognize the essenstatute or by force of judicial deci- tials of the New England rule. sion, makes books of accounts kept Watrous v. Cunningham, 71 Cal. 30, by a party competent as evidence; 11 Pac. 811. and it will be found that now, just It must be remembered, of course, as before removal of the disquali- that a party can now, by reason of fication of a party to testify, the the removal of the former disqualiseveral states may be classified as fication, testify as a witness to the those applying the New York rule same facts which he could have reand as those applying the New Eng- lated under the suppletory oath; inland rule. There are, as is to be ex- deed, he can go further, for he can pected, variations now observable now in most jurisdictions, Oregon in some jurisdictions, just as there included, testify without any more were variations in a few states at restrictions than are imposed upon an earlier date; and it may be add

any other witness. Or. Laws, S ed that the variations from the

731. Under the New England rule original type now to be found are

a party testifying as a witness may larger in number, and, in not a few

now say all that he could have said instances, more marked in degree

under the suppletory oath; and, than before. In New York the doc

while he may, because of being pertrine of Vosburgh v. Thayer is still followed. Smith v. Smith, 163 N. mitted to testify generally as a witY. 168, 52 L.R.A. 545, 57 N. E. 300. ness, now say more than he would A few states have enacted statutes have been permitted to say under containing some or most of the es- the suppletory oath, he must now sential features which characterize say all that he would have been the New York rule; as, for example: obliged to say under the suppletory

[ocr errors]

oath before his books of accounts that 790, Or. Laws, atfects books are admissible.

of accounts when used under the In Oregon there is no statute shopbook rule. Section 790, Or. regulating the use of shopbooks as Laws, traces its origin to a source evidence. Section 791, Or. Laws, entirely separated from the shopprovides: “When an entry is re- book rule. The general rule is that peated, in the regular course of entries of a third person, of transbusiness, one being copied from an- actions between such third person other, at or near the time of the and others not parties to the litiga. transaction, all the entries are tion, or one of the parties litigant, equally regarded as originals.” are not admissible, because they are

Undoubtedly this section is gen- hearsay and res inter alios acta; eral in its scope, and applies to en- but, under one of the exceptions to tries in shopbooks as well as to any this general rule, entries against other entries which may be said to the interest of the person making come within its embrace. We also them, the entrant being dead, are have in this jurisdiction a statute admissible. 2 Enc. Ev. 667-670.

.

. (Or. Laws, $ 790), regulating the Another exception to the hearsay admissibility of entries made by prohibition recognized by the compersons deceased or without the mon law was the established docstate; and it reads as follows: trine which permitted the reception

“Writings of Deceased Persons, of written entries made by deceased or Persons without the State, Ad- persons in the usual course of promissible in What Cases.The en- fessional or official business or in tries or other writings of like char- the discharge of some duty. This acter of a person deceased or with- doctrine rests upon its own basis, out the state, made at or near the and has its own history. It is treattime of the transaction, and in a ed by text-writers as a rule which position to know the facts stated is separate and apart from the therein, may be read as primary shopbook rule, and, although these evidence of the facts stated there- two rules have points of similarity, in, in the following cases:

in that each pos“1. When the entry was made sesses some of the Evidence-en

tries by person against the interest of the person same features, yet since deceasedmaking it; or,

neither rule is con- shopbook rule.

-relntion to “2. When it was made in a pro- nected with or defessional capacity, and in the ordi- pendent upon the other. There was nary course of professional con- a good reason for the enactment of duct; or,

$ 790, Or. Laws, and that reason is “3. When it was made in the per- found in the fact that it was the formance of a duty specially en- plain purpose of the legislature to joined by law."

codify the rule governing entries of The states of California, Idaho, third persons against interest, and Montana, and Utah have a statute especially to limit the scope of the identical with or nearly the same as common-law rule governing entries $ 790, Or. Laws, but, like Oregon, made by deceased persons in the

, neither of those states has any stat- course of professional or official ute, except possibly one like $ 791, business, or in discharge of some Or. Laws, in any way applicable to duty, as that rule was applied in shopbooks. 3 Kerr's Cyc. Codes America. In the absence of legisla(Cal.) 1905, § 1946; 2 Idaho Comp. tion restricting the scope of its opStat. 1919, § 7967; 3 Mont. Rev. eration, this common-law rule relatCodes, $ 10,595; Utah Comp. Laws ing to entries made by deceased 1917, $ 7113.

persons in the usual course of proIt would be difficult by any course fessional or official business, or in of logical reasoning to declare that the discharge of some duty, was and the shopbook rule is recognized in is given a much more liberal applithis state and at the same time say cation by American courts than by

-purpose of statute.

received.

(105 Or. 559, 210 Pac. 863.) the English courts; and this differ- books of accounts of a party were ence in the application of the com- admissible upon proof of the death mon-law rule furnishes the prin- of the entrant, whether he was a cipal reason for the enactment of party or the clerk of a party; and 790, Or. Laws. Manifestly the so, too, if the clerk who kept the legislature realized that, if no stat- books of accounts had removed perute were enacted, the courts of this manently from the jurisdiction of

state would give to the court, a party could, upon proof the common-law of such removal, introduce the

rule its American books as evidence. Now, suppose a application, and, in order to prevent blacksmith performs services or a such liberal application, the legisla- merchant sells goods on credit, and ture enacted the statute.

the blacksmith or his helper keeps Sometimes it is

is difficult, as the blacksmith's books, or the merpointed out by Professor Wigmore, chant keeps his books and the ento know whether a given statute is trant dies. Could it be said in eiapplicable to this common-law rule ther instance that the entries showrelative to entries of deceased per- ing charges for services rendered or sons, or whether it governs shop- for goods sold were entries against books used as such under the shop- the interest of the entrant, or that book rule; and this difficulty has they were made "in a professional not infrequently caused confusion. capacity, and in the ordinary course

Shopbooks are re- of professional conduct," or that -why shopbooks ceived because they they were “made in the perform

are the books of ac- ance of a duty specially enjoined by counts of a party, and they are so law? · If § 790, Or. Laws, were received without regard to whether applied in the administration of the the entrant is dead or alive; but the shopbook rule, it would practically entries covered by $ 790, Or. Laws, restrict the operation of that rule to and the common-law rule of which cases where the entrant is living the statute is a codification, makes and within the state; for only a limthe admissibility of the entries de- ited number of cases could, by any pendent upon the death of the en- stretch of the imagination, be trant. Moreover, an entry may, for brought within any of the classes various reasons, be admissible un- specified by $ 790. Moreover, some der § 790, Or. Laws, and yet be in- states have statutes like $ 790, Or. admissible under the shopbook rule. Laws, and also separate statutes An entry may be made in a book or purporting to codify the shopbook paper, and be admissible under $ rule, thus indicating the legislative 790, Or. Laws, and yet the book or intent to continue the common-law paper may be entirely outside of rule relating to entries of deceased the pale of the shopbook rule. persons, and also the shopbook rule,

The shopbook rule applies to the with each operating independently books of one party to show sales of the other. See Iowa Comp. Code

made to or services 1919, SS 7329, 7330; Neb. Comp. - scope of shop- rendered

for the Stat. 1922, $ 8846. Our conclusion other party.

Sec- is that $ 790, Or. Laws, does not tion 790, Or. Laws, is a codification affect the shopbook rule. 4 Chamof the common-law rule applicable berlayne, Ev. $$ 2870–2909, and $$ to entries made by strangers to the 3051-3149; 2 Wig

, litigation. Under the shopbook

more, Ev. $$ 1517– sentries by perrule the entries must generally be 1651; 1 Elliott, Ev. ceased-shopmade in a shop or account book, SS 454-475, and $$ while under the other rule they may 476-494, and especially § 477. be made in any book or document. There is, then, no statute in this 1 Elliott, Ev. $ 477.

jurisdiction governing the use of Under the shopbook rule as ad- shopbooks as evidence. However, ministered in New England, the the judiciary have recognized the

book rule.

book rule.

right to introduce shopbooks as evi- transactions entered. 2 Wigmore, dence. Friendly v. Lee, 20 Or. 202, Ev. $ 1550. Even though a party 25 Pac. 396; Durkheimer v. Heilner, made the entries himself he need 24 Or. 270, 33 Pac. 401, 34 Pac. 475; not offer testimony as to his reputaHarmon v. Decker, 41 Or. 587, 93 tion for correct and honest accountAm. St. Rep. 748, 68 Pac. 11, 1111; ing, for such character of testimony Raski v. Wise, 56 Or. 72, 107 Pac. is one of the features of the New 984; Mason v. Melhase, 64 Or. 522, York rule. The

-entries made 130 Pac. 1134; Stuart v. Camp Car- party may himself by plaintifison Min. Co. 84 Or. 702, 165 Pac.

when admissible. testify directly

to 359. At an early date in the his- the correctness of his books. Note tory of this state this court declined in 138 Am. St. Rep. 448. See 2 to decide whether allowing the par- Wigmore, Ev. $ 1552. Nor, if a ty to testify as a witness precluded party has been his own bookkeeper, him from using his books of ac- need he prove that he had no clerk counts under the shopbook rule helping him, for such proof is also (Henderson v. Morris, 5 Or. 24, one of the essentials of the New 29), but since that time the court York doctrine. See 2 Wigmore, Ev. has proceeded upon the assumption 1538; note in 138 Am. St. Rep.

$ that the removal of the disqualifica- 446. In this connection it is proper tion of a party to testify as a wit- to direct attention to the fact that a ness did not affect the right to use "clerk," within the meaning of the his shopbooks. Heretofore it has New York doctrine, does not mean not been deemed necessary to dis- a mere bookkeeper, but it means tinguish between the New York and "one who had something to do with the New England rules, and conse- and had knowledge generally of the quently in several of our precedents business of his employer in refermay be found citations from New ence to goods sold or work done, so York, and iņ company with them ci- that he could testify on that subject, tations from New England states. ... and thus is able to prove an Sometimes, too, our precedents account.” McGoldrick v. Traphacontain references to cases dealing gen, 88 N. Y. 334, 338. with the use of writings to refresh The entrant, if available, must the memory.

However, the uni- ordinarily be called as a witness, or form practice in the trial courts has facts should be been to receive shopbooks, and the shown sufficient to -necessity of

calling entrant. general practice, as we understand excuse his absence. it, has been to require the laying of 4 Chamberlayne, Ev. § 3070. The a foundation containing the essen- entrant must testify that the books tials of what we have designated as were correctly kept. 2 Wigmore, the New England rule, and we ap- Ev. § 1554. However, in some inprove such practice.

stances, as, for example, where The books must appear to have there is a head bookkeeper and the been honestly kept. Evidence of entries have been made by a sub

mutilation or al- when shop

ordinate bookkeeper, the correctteration requires a ness of entries in books may be missible.

satisfactory expla- proved by any pernation. 2 Wigmore, Ev. § 1557 ; 2 son who is able of -who mny

verify books, Enc. Ev. 612. The books must his own knowledge be books of original entry. 4 to testify to the correctness of the Chamberlayne, Ev. $ 3085. The entries. Note in 138 Am. St. Rep. entries must have been made in the 448. If the entries were made by a regular course of the entrant's busi- clerk who is dead, insane, or physiness or employment. 2 Wigmore,

2 Wigmore, cally unable to attend as a witness, Ev. $ 1546; 4 Chamberlayne, Ev. S or is removed permanently from the 3101. The entries must have been jurisdiction of the court, the books fairly contemporaneous with the may be made admissible by proof of

books ad

« 이전계속 »