quiescence and long-established usage.'

The court further said: "But instead of simply 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."

Under the New England form of the shopbook rule, books of accounts. kept by a party himself were received in evidence when supported by his suppletory oath. Union Bank v. Knapp, 3 Pick. 96, 15 Am. Dec. 181; Missouri P. R. Co. v. Johnson, Tex., 7 S. W. 838. This was in imitation of the suppletory oath of the civil law. 3 Bl. Com. 369, 370; Conklin v. Stamler, 17 How. Pr. 399; 37 Cyc. 606. The oath was administered to the party in court. Frye v. Barker, 2 Pick. 65; 4 Chamberlayne, Ev. § 3082. In jurisdictions where the suppletory oath was administered, a party could not be a "general witness," nor could he tell about the contract price or the value of the articles sold or services rendered, but he was restricted to testimony relative to the delivery of the articles sold, or the rendition of services, the correctness of the entries made, and to testimony that the books were regularly and accurately kept. Mitchell v. Belknap, 23 Me. 475; Mathes v. Robinson, 8 Met. 269, 41 Am. Dec. 505; Dwinel v. Pottle, 31 Me. 167; 4 Chamberlayne, Ev. §§ 3082, 3144; 2 Wigmore, Ev. § 1554; 2 Enc. Ev. 629; Cummings v. Nichols, 13 N. H. 420, 38 Am. Dec. 501. See also Vosburgh v. Thayer, 12 Johns. 461,

463; 4 Chamberlayne, Ev. § 3055; 1 Pa. L. J. 105. The New England rule was followed in other jurisdictions outside of New England.

Under the rule, which, for convenience, we have designated as the New England rule, a party wishing to introduce books of accounts kept

by himself submitted them to the court for inspection, and, if they did not appear to be a register of the daily business of the party and to have been honestly and fairly kept, they were rejected. If an erasure or alteration in a material part appeared, it was necessary to explain the erasure or alteration before the books could be admitted. If the books passed the inspection of the court, the party himself was required to make oath in open court that they were the books in which the accounts of his ordinary business transactions were usually kept; that the entries were made at or about the time of the transactions, and were the originals, and were correctly made; that the goods therein. charged were actually delivered to the defendant, or that the services therein charged were actually performed for the defendant; and that the sums charged and claimed had not been paid. 1 Greenl. Ev. 15th ed. p. 183, note 2.

The practice of receiving as evidence books of accounts kept by party was repudiated by a very few courts, and followed with reluctance by some (notes in 138 Am. St. Rep. 441 and 52 L.R.A. 545), but it will be found that most of the courts adopted some form of the shopbook rule; and it is a noteworthy fact, too, that in the jurisdictions beyond New England and New York, the courts in the main adopted either the New York or the New England form of the shopbook rule. The form of rule observed in a few courts presented some variations; as, for example, Hooker v. Johnson, 6 Fla. 730; Neville v. Northcutt, 7 Coldw. 294; Forsee v. Matlock, 7 Heisk. 421. See also 4 Chamberlayne, Ev. § 3082; but, stated broadly, the rules adopted by the different courts may be appropriately assigned, because of their distinguishing characteristics, either to the New York or to the New England classification. Thus far we have been discussing the rule applicable to books of accounts kept by a par

ty at a time when he was disqualified to testify as a witness.

The disqualification which formerly precluded a party from testifying as a witness has been quite generally removed, and at the present time a party can in most states testify without any more restrictions than are imposed upon other witnesses. Notwithstanding the shopbook rule traces its origin to a judicial recognition of the necessity created by the disqualification of a party to testify as a witness, the removal of that disqualification has not, except in a few jurisdictions, prevented the operation of the rule or produced any material limitations upon it. The doctrine. of consistency might seem to lead to the abolition of the rule upon the removal of the reason that produced the rule; but granting to a party the right to testify as a witness has, except in rare instances, had no appreciable influence upon the application of the shopbook rule. 10 R. C. L. 1173; note in 138 Am. St. Rep. 444; 4 Chamberlayne, Ev. § 3068. At the present time nearly every state in the Union, by virtue of a statute or by force of judicial decision, makes books of accounts kept by a party competent as evidence; and it will be found that now, just as before removal of the disqualification of a party to testify, the several states may be classified as those applying the New York rule and as those applying the New England rule. There are, as is to be expected, variations now observable in some jurisdictions, just as there were variations in a few states at an earlier date; and it may be added that the variations from the original type now to be found are larger in number, and, in not a few instances, more marked in degree. than before. In New York the doctrine of Vosburgh v. Thayer is still Smith v. Smith, 163 N. followed. Y. 168, 52 L.R.A. 545, 57 N. E. 300. A few states have enacted statutes containing some or most of the essential features which characterize the New York rule; as, for example:

Alabama, Code (Ala.) 1907, § 4003; Georgia, Park's Anno. Code (Ga.) 1914, § 5769 (see also Bracken v. Dillon, 64 Ga. 243, 37 Am. Rep. 70); New Mexico, Anno. Stat. (N. M.) 1915, § 2187.

Although some of the presentday legislation relative to the use of books of accounts follows more or less closely the New York doctrine, it will be found, upon examination of existing statutes, that most of the statutes now in force in the United States, so far as they relate to the foundation required to be laid for the introduction of the books, contain so many of the features of the New England doctrine that it can be appropriately said that most of the present-day legislation is in accord with the New England rather than with the New York rule. number of states, including several western states, have no legislation regulating the use of shopbooks; and, while one of such western states requires evidence showing that a party kept no clerk, as is required by the New York rule, nearly all the remainder of such western states seem to recognize the essentials of the New England rule. Watrous v. Cunningham, 71 Cal. 30, 11 Pac. 811.

A

It must be remembered, of course, that a party can now, by reason of the removal of the former disqualification, testify as a witness to the same facts which he could have related under the suppletory oath; indeed, he can go further, for he can now in most jurisdictions, Oregon included, testify without any more restrictions than are imposed upon any other witness. Or. Laws, S 731.

Under the New England rule a party testifying as a witness may now say all that he could have said under the suppletory oath; and, while he may, because of being permitted to testify generally as a witness, now say more than he would have been permitted to say under the suppletory oath, he must now say all that he would have been obliged to say under the suppletory

oath before his books of accounts are admissible.

In Oregon there is no statute regulating the use of shopbooks as evidence. Section 791, Or. Laws, provides: "When an entry is repeated, in the regular course of business, one being copied from another, at or near the time of the transaction, all the entries. equally regarded as originals."

Undoubtedly this section is general in its scope, and applies to entries in shopbooks as well as to any other entries which may be said to come within its embrace. We also have in this jurisdiction a statute (Or. Laws, § 790), regulating the admissibility of entries made by persons deceased or without the state; and it reads as follows:

"Writings of Deceased Persons, or Persons without the State, Admissible in What Cases.-The entries or other writings of like character of a person deceased or without the state, made at or near the time of the transaction, and in a position to know the facts stated therein, may be read as primary evidence of the facts stated therein, in the following cases:

"1. When the entry was made against the interest of the person making it; or,

"2. When it was made in a professional capacity, and in the ordinary course of professional conduct; or,

"3. When it was made in the performance of a duty specially enjoined by law."

The states of California, Idaho, Montana, and Utah have a statute identical with or nearly the same as § 790, Or. Laws, but, like Oregon, neither of those states has any statute, except possibly one like § 791, Or. Laws, in any way applicable to shopbooks. 3 Kerr's Cyc. Codes (Cal.) 1905, § 1946; 2 Idaho Comp. Stat. 1919, § 7967; 3 Mont. Rev. Codes, § 10,595; Utah Comp. Laws 1917, § 7113.

It would be difficult by any course of logical reasoning to declare that the shopbook rule is recognized in this state and at the same time say

that 790, Or. Laws, affects books of accounts when used under the shopbook rule. shopbook rule. Section 790, Or. Laws, traces its origin to a source entirely separated from the shopbook rule. The general rule is that entries of a third person, of transactions between such third person and others not parties to the litigation, or one of the parties litigant, are not admissible, because they are hearsay and res inter alios acta; but, under one of the exceptions to this general rule, entries against the interest of the person making them, the entrant being dead, are admissible. 2 Enc. Ev. 667-670. Another exception to the hearsay prohibition recognized by the common law was the established doctrine which permitted the reception of written entries made by deceased persons in the usual course of professional or official business or in the discharge of some duty. This doctrine rests upon its own basis, and has its own history. It is treated by text-writers as a rule which is separate and apart from the shopbook rule, and, although these two rules have points of similarity, in that each pos

sesses some of the Evidence-entries by person same features, yet since deceasedneither rule is con- shopbook rule. nected with or de

-relation to

pendent upon the other. There was a good reason for the enactment of § 790, Or. Laws, and that reason is found in the fact that it was the plain purpose of the legislature to codify the rule governing entries of third persons against interest, and especially to limit the scope of the common-law rule governing entries made by deceased persons in the course of professional or official business, or in discharge of some duty, as that rule was applied in America. In the absence of legislation restricting the scope of its operation, this common-law rule relating to entries made by deceased persons in the usual course of professional or official business, or in the discharge of some duty, was and is given a much more liberal application by American courts than by

received.

Sometimes it is difficult, as pointed out by Professor Wigmore, to know whether a given statute is applicable to this common-law rule relative to entries of deceased persons, or whether it governs shopbooks used as such under the shopbook rule; and this difficulty has not infrequently caused confusion. Shopbooks are re-why shopbooks ceived because they are the books of accounts of a party, and they are so received without regard to whether the entrant is dead or alive; but the entries covered by § 790, Or. Laws, and the common-law rule of which the statute is a codification, makes the admissibility of the entries dependent upon the death of the entrant. Moreover, an entry may, for various reasons, be admissible under § 790, Or. Laws, and yet be inadmissible under the shopbook rule. An entry may be made in a book or paper, and be admissible under § 790, Or. Laws, and yet the book or paper may be entirely outside of the pale of the shopbook rule.

The shopbook rule applies to the books of one party to show sales

books of accounts of a party were admissible upon proof of the death of the entrant, whether he was a party or the clerk of a party; and so, too, if the clerk who kept the books of accounts had removed permanently from the jurisdiction of the court, a party could, upon proof of such removal, introduce the books as evidence. Now, suppose a blacksmith performs services or a merchant sells goods on credit, and the blacksmith or his helper keeps the blacksmith's books, or the merchant keeps his books and the entrant dies. Could it be said in either instance that the entries showing charges for services rendered or for goods sold were entries against the interest of the entrant, or that they were made "in a professional capacity, and in the ordinary course of professional conduct," or that they were "made in the performance of a duty specially enjoined by law? If § 790, Or. Laws, were applied in the administration of the shopbook rule, it would practically restrict the operation of that rule to cases where the entrant is living and within the state; for only a limited number of cases could, by any stretch of the imagination, be brought within any of the classes specified by § 790. Moreover, some states have statutes like § 790, Or. Laws, and also separate statutes purporting to codify the shopbook rule, thus indicating the legislative intent to continue the common-law rule relating to entries of deceased persons, and also the shopbook rule, with each operating independently of the other. See Iowa Comp. Code 1919, §§ 7329, 7330; Neb. Comp. Stat. 1922, § 8846. Our conclusion is that § 790, Or. Laws, does not affect the shopbook rule. 4 Chamberlayne, Ev. §§ 2870-2909, and §§ 3051-3149; 2 Wigmore, Ev. §§ 15171651; 1 Elliott, Ev. ceased-shop$§§ 454-475, and §§ 476-494, and especially § 477.

-entries by person since debook rule.

There is, then, no statute in this jurisdiction governing the use of shopbooks as evidence. However, the judiciary have recognized the

right to introduce shopbooks as evidence. Friendly v. Lee, 20 Or. 202, 25 Pac. 396; Durkheimer v. Heilner, 24 Or. 270, 33 Pac. 401, 34 Pac. 475; Harmon v. Decker, 41 Or. 587, 93 Am. St. Rep. 748, 68 Pac. 11, 1111; Raski v. Wise, 56 Or. 72, 107 Pac. 984; Mason v. Melhase, 64 Or. 522, 130 Pac. 1134; Stuart v. Camp Carson Min. Co. 84 Or. 702, 165 Pac. 359. At an early date in the history of this state this court declined to decide whether allowing the party to testify as a witness precluded him from using his books of accounts under the shopbook rule (Henderson v. Morris, 5 Or. 24, 29), but since that time the court has proceeded upon the assumption that the removal of the disqualification of a party to testify as a witness did not affect the right to use his shopbooks. Heretofore it has not been deemed necessary to distinguish between the New York and the New England rules, and consequently in several of our precedents may be found citations from New York, and in company with them citations from New England states. Sometimes, too, our precedents contain references to cases dealing with the use of writings to refresh the memory. However, the uniform practice in the trial courts has been to receive shopbooks, and the general practice, as we understand it, has been to require the laying of a foundation containing the essentials of what we have designated as the New England rule, and we approve such practice.

-when shopbooks admissible.

The books must appear to have been honestly kept. Evidence of mutilation or alteration requires a satisfactory explanation. 2 Wigmore, Ev. § 1557; 2 Enc. Ev. 612. The books must be books of original entry. 4 Chamberlayne, Ev. § 3085. The entries must have been made in the regular course of the entrant's business or employment. 2 Wigmore, Ev. § 1546; 4 Chamberlayne, Ev. § 3101. The entries must have been fairly contemporaneous with the

when admissible.

transactions entered. 2 Wigmore, Ev. § 1550. Ev. 1550. Even though a party made the entries himself he need not offer testimony as to his reputation for correct and honest accounting, for such character of testimony is one of the features of the New York rule. The -entries made party may himself by plaintifftestify directly to the correctness of his books. Note in 138 Am. St. Rep. 448. See 2 Wigmore, Ev. § 1552. Nor, if a party has been his own bookkeeper, need he prove that he had no clerk helping him, for such proof is also one of the essentials of the New York doctrine. See 2 Wigmore, Ev. § 1538; note in 138 Am. St. Rep. 446. In this connection it is proper to direct attention to the fact that a "clerk," within the meaning of the New York doctrine, does not mean a mere bookkeeper, but it means "one who had something to do with and had knowledge generally of the business of his employer in reference to goods sold or work done, so that he could testify on that subject, and thus is able to prove an account." McGoldrick v. Traphagen, 88 N. Y. 334, 338.

The entrant, if available, must ordinarily be called as a witness, or facts should be

calling entrant.

shown sufficient to necessity of excuse his absence.

4 Chamberlayne, Ev. § 3070. The entrant must testify that the books were correctly kept. 2 Wigmore, Ev. 1554. However, in some instances, as, for example, where there is a head bookkeeper and the entries have been made by a subordinate bookkeeper, the correctness of entries in books may be proved by any person who is able of his own knowledge to testify to the correctness of the entries. Note in 138 Am. St. Rep. 448. If the entries were made by a clerk who is dead, insane, or physically unable to attend as a witness, or is removed permanently from the jurisdiction of the court, the books may be made admissible by proof of

who may

verify books.