Errors were also assigned by Mrs. Stephens, a judgment
creditor of Robert Stiles, who declined taking part in the issue
below, that the court had no right to direct a feigned issue : and
the same objection has. been made on behalf of Harbert and
Cald well. The ground on which this is placed is, that the money
being raised by the sale of the estate of Robert Stiles, the court
had no right to direct an issue at the instance of the creditors of
Thomas T. Stiles. On the principles, however, mentioned before,
this is an incorrect mode of stating the case. The creditors of
r*404] Thomas T. Stiles had a claim on the fund, *and the
J powers of the court, under the act of assembly of
April, 1827, were ample to extend to them relief in the shape
of a feigned issue to settle doubtful points. We are of opinion
that the judgment be affirmed.
Judgment affirmed.
Cited by Counsel, 7 S. 333 ; 17 S 439, 456.
[PHILADELPHIA, FEBRUARY 21, 1834.]
F * f. \?-i M "P'^x 1
Rhoads against Gaul et al.
IN ERROR.
A book, purporting to be a book of original entries, containing entries of
the sale of goods, ma'de when the goods were ordered, but before they were
delivered, is not competent evidence of goods sold and delivered. Nor are
arbitrary signs or marks affixed to the entry of each article, not for the pur-
pose of charging the defendant, but of informing the porter so as to prevent
a second delivery of a similar article, are not evidence of delivery, particu-
larly when it appears that the signs or marks were not always made by the
person who made the charge, nor by t'he plaintiff, or a clerk in his employ-
ment.
ON a writ of error to the District Court for the city and
county of Philadelphia, it appeared that this suit was brought
by the defendants in error, Martin and William Gaul, surviving
partners of the firm of Frederick Gaul & Sons, against the
plaintiff in error, Daniel J. Rhoads, for goods sold and deliv-
454
Feb. 21, 1834.] OF PENNSYLVANIA. 404
[Rhoads v. Gaul et al.]
ered, to which the defendant below pleaded non assumpsit and
payment.
From the bill of exceptions returned with the record it ap-
peared, that on the trial the plaintiffs, preparatory to offering in
evidence their book of original entries, called a witness who
swore that the book produced was the book of original entries of
the plaintiffs': That certain entries in it charging the defeud-
aiit, were in the handwriting of a person who had formerly been
i:i the employment of the plaintiffs, but was not then within the
jurisdiction of the court, and that the entries were made when
the goods were ordered.
One of the plaintiffs was then sworn, who testified that the
book produced was their book of original entries : That the
entries were made before the delivery of the goods : That the
plaintiffs had a sign by which the delivery was marked : That
the person who made the entries generally, but not always, made
the sign : That it was made by the person who happened to be
in the counting-house : That the entries were always made at the
time of the sale, and if the goods had not been delivered, the
entries would have been erased : That the sign was a tick made
thus, V: That the tick was merely for the direction of the
porter, to prevent a second delivery of the article sold : That
the tick was generally made by the person who saw the goods
sent by the porter, and that he could not say by the appearance
of the ticks, by what hand they were made. The witness then
proved *the entries in his own handwriting. Upon the r*4nK-i
preliminary evidence thus given the plaintiffs offered '
the book in evidence, which was objected to by the defendant's
counsel, but the court overruled the objection, and sealed a bill
of exceptions.
After having proved by the oath of the other plaintiff, the en-
tries made by him, and by another witness the value of certain
articles delivered to the defendant, and given in evidence two
letters from the defendant to F. Gaul & Sous, one of them dated
Pottsville, May 21st, 1829, and the other, August 5th, 1829,
the plaintiffs called a witness, who swore, that he was well ac-
quainted with the manner in which business was conducted in
the plaintiffs' counting-house, and with the manner in which the
entries were made in the book which had been given in evi-
dence: That when a dot preceded the figures in either of the
columns in the left hand side of the page, and two dots succeeded
it, the sale was of so many barrels of porter or ale as the figures
indicated, and when three dots followed the figures, they de-
noted the sale of so many hogsheads of porter or ale. When
ihis evidence was offered, the defendant's counsel objected to it,
but the court having permitted it to be given, a second bill of
455
405 SUPEEME COURT [Philadelphia,
[Khoads v. Gaul et oZ.]
exceptions to their opinion was tendered by the defendant's
counsel, and sealed by the court.
The book above referred to was exhibited to the Supreme
Court, in which it appeared that the entries were made thus :
.3..
.3..
2..
.3..
Daniel J. Rhoads, V
Daniel J. Rhoads, F 20 Groce corks 2 B C
Daniel J. Rhoads, F
36
48
The jury found a verdict for the plaintiffs, on which judg-
ment was entered, and the defendant took out a writ of error.
The errors assigned in this court were,
1. That the entries were made at the time the orders were
received, and not at the time of the sale and delivery of the
articles said to have been sold.
2. That the supposed sign of the delivery was not proved by
any person.
3. That there are no charges in the book against the defend-
ant below, of the sale and delivery of goods to him, but marks
only, which are not intelligible to persons acquainted with
business.
Bouvier, for the plaintiff in error. By the common law,
books are not evidence unless proved by the oath of some other
person than the party who offers them. Their admission, sup-
ported by the supplctory oath of the party, arose from a sup-
posed necessity, and it has been " 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. When a
book is offered in evidence, it ought to appear suited to aid the
r*4Aftl oa ^ ^ ^ ie P ar ty by whom it is produced, *and to for-
b J tify and confirm it." Per Sedgwick, J., 2 Mass. R. 217.
The principal evidence is the oath of the party, and the book a
mere auxiliary in corroboration of it. 12 Johns. R, 464. If,
as has been said, the courts of Pennsylvania have adopted the
civil law, it would have been well, in order to prevent abuses,
to have adopted its provisions on the subject, and required the
books of merchants and others to be properly kept, and verified
by a proper officer at least once a year. To entitle a book to be
read in evidence to prove the sale of goods, it must be proved
that it is a book of original entries, and that the charges were
made at or near the time of the sale and delivery of the articles
sold. In support of this position he cited Poultney v. Ross,
1 Dall. 239 ; Tenbroke v. Johnson, 1 Coxe R. 288 ; Wilmer v.
Israel, 1 Browne's R. 257; Sterrett v. Bull, 1 Binn. 234; Cur-
ren v. Crawford, 4 Serg. & Rawle, 3; Rogers v. Old, 5 Serg.
456
Feb. 21, 1834.] OF PENNSYLVANIA. 406
[Rhoads v. Gaul et oZ.]
& Rawle, 404; Summers v. M'Kim, 12 Serg. & Rawle, 411;
Cooper v. Morrel, 4 Yeates, 341^ Smith v. Lane, 12 Serg. &
Rawle, 80; Juniata Bank v. Brown, 5 Serg. & Rawle, 226; 1
South, 370; Thompson v. M'Kelvey, 13 Serg. & Rawle, 126;
Baisch v. Hoff, 1 Yeates, 198; Vance . Feariss, 1 Yeates, 321 ;
Wright v. Sharp, 1 Brown's R. 344. The book in question
was a mere order book. If the plaintiffs found they could not
supply the whole order, they furnished what they could, and
charged it in the day book, and the charges in this book became
of no consequence. Entries in a regular book of orignal en-
tries, are undoubtedly prima facie evidence of delivery, but here
it appears a certain sign was made, which it is alleged was the
evidence of delivery. It was necessary, at least, to prove who
made that sign, of which there was no evidence. Again, there
was no charge of goods in the book, nor does it appear from the
book whether the items it contains were intended for debits or
credits. As the books of a party are admitted from necessity, it
was his duty to do all in his power to make them intelligible,
and if the plaintiffs chose to make a book of riddles, they cannot
be allowed to explain it to their own advantage. There are sev-
eral columns on the left side of the page, and figures with one
or more dots next to each are made in these columns. There is
no explanation in the book itself, from which it can be known,
whether porter, beer, or ale is intended to be charged, nor indeed
any other article of merchandise. Another objection to such a
mode of keeping a book is, that it is open to fraud and liable
to mistakes. One clot more or less, according to the evidence,
changes the quantity of goods said to have been sold, and it is
easy to add or subtract these dots intentionally, or to make
mistakes in entering them, and in either case injustice is done
Besides, not being understood by persons in the trade, it is im
possible to check errors. It is not like keeping a book in a
foreign language, which i understood by those acquainted with
the language, or like the books of some merchants, which can be
explained by men in the same business. The plaintiffs having
chosen to make a mystery of their books, the inconveniences
of them should not be visited on others.
* G-rimshaw, for the defendants in error, contended that
this book is such as the law recognises. In mercantile
transactions strict evidence is not required. Riche v. Broadfield,
1 Dall. 17. But even if it were required, and this book should not
be held to be good evidence, still the court will not reverse a judg-
ment rendered after a fair hearing, where the jury were perfectly
satisfied, if there was other testimony which would authorize their
verdict. Here are two letters by which the plaintiff in error
457
407 SUPREME COURT [Philadelphia,
[Khoads v. Gaul et cd.]
orders these goods. This book was sufficient, because the entries
were made at the time of the.sale, and the entry is evidence of
sale and delivery, independent of the sign or tick, which was
merely surplusage, or made to prevent a second delivery," and it
need not be proved who made it. As to the manner of making
the charges, it is clearly understood as the charges made by an
apothecary, which are generally in Latin, and by signs of
ounces and drachms ; or by grocers, whose charges are abbre-
viated; and so are those of a dry goods merchant, and indeed
the charges of most persons in trade. Tallies and other sym-
bols are used and are good evidence. 1 Phil. Ev. 490 ; 6 Ves.
Jr. 397 ; 5 Co. 68 ; Ingraham v. Bockius, 9 Serg. & Rawle, 285;
Arnold v. Anderson, 2 Yeates, 93.
The opinion of the court was delivered by
GIBSON, C. J. A shop-book is competent as a registry of the
sales made in the course of the business ; and, in the nature of
things, no true registry can be made of a fact that has not hap-
pened. If it were registered as having already happened, under
a confident expectation that it would happen, the registry was
false when it was made, and being false then, it is false still.
The entries, therefore, ought to be made at the delivery of the
goods, or immediately afterwards ; and this is what is meant in
Curren v. Crawford, 4 Serg. & Rawle, 3, by saying theV ought
to be made at or near the time. It is an undisputed part of the
present case, that the charges were made when the goods were
ordered and before they were sent, so that the entries are clearly
incompetent standing by themselves ; and what supplemental or
independent fact is there to prove the delivery, which is as in-
dispensable to charge the customer as the sale itself? It is that
an arbitrary mark or sign was separately affixed to the entry of
each article ; not, however, to charge the defendant, but to in-
form the porter so as to prevent a second delivery. According
to Rogers v. Old, 5 Serg. & Rawle, 404, in which an entry not
purporting on its face to charge the party was held to be inad-
missible, the purpose of the marks is conclusive of their incom-
petency ; for it must be indifferent whether there be no apparent
intent to charge at all, or an apparent intent rebutted by the
evidence adducea to explain and support it. Independent of
this, it is decisive that the marks were not always made by the
hand that made the charge : and that no witness proves them
f*408T to ^ ave ^ een raa ^ e i n ^is instance, by the plaintiff *or
J a clerk in his employment. If, then we treat the marks
as the substantive evidence of delivery, dismissing all beside,
except so far as it serves to explain the meaning of the marks,
we look in vain for proof of their authenticity. In questions
458
21, 1834.] OF PENNSYLVANIA. 408
[Rhoads v. Gaul et <i/.]
of this sort, it is necessary to show, not only the originality of
the book, but the genuineness of the writing, in order to raise
a presumption that the transaction was in the usual course of
the business. Such is the principle of Sterrett v. Bull, 1 Binn.
234, by which it was determined that entries in the hand-
writing of a clerk must be verified by his oath, or proof be
made that he is dead or out of the jurisdiction. What we have
here as evidence of delivery is a set of arbitrary signs, intelligi-
ble but to those who are in the service of the plaintiff, and un-
supported by the oath of him who made them ; consequently
they ought not to have gone to the jury.
Judgment reversed, and a venire de novo awarded.
Cited by Counsel, 4 Wh. 37 ; 5 W. & S. 473 ; 2 Barr, 241, 464 ; 9 H. 439 ; 3
C. 33; 6 C. 309; 2 Wr. 374; 3 Wr. 410; 2 G. 380; 3 G. 284.
Cited by the Court, 5 Wh. 324 ; 7 W. 42; 8 Barr, 477 ; 8 C. 16 ; 1 Wr. 142 ;
13 Wr. 371.
[PHILADELPHIA, FEBRUARY 21, 1834.]
Pattern against Ryan.
IN ERROR.
Where a plaintiff makes an entry of goods sold upon a card, with pen and
ink, and the same evening or the next day transcribes the entries into a book,
the book is to be considered as the book of original entries of the plaintiff, and
may be read in evidence to the jury, and the material on which the entry was
first written, or its size and shape, are indifferent.
THIS was a writ of error to the Court of Common Pleas of
Philadelphia county.
From the record it appeared, that Mary Ann Ryan, the plain-
tiff below, instituted this suit against William Patton, the de-
fendant below, to recover the sum of fifty-four dollars, for goods
sold and delivered. The cause was tried in the Common Pleas
of Philadelphia county on the twenty-fifth of September, 1833,
and a verdict rendered in favour of the plaintiff. On the trial
the plaintiff produced a book in her handwriting, purporting
to be a book of original entries, and upon being sworn to make
true answers, testified as follows: " I made the entries against
Mr. Patton first upon a card, the size of a spelling-bopk. I
afterwards copied them into this book, either the same evening,
or next day, or as soon after as I conveniently could. After I
copied the entries, I destroyed the card." The book was then
offered in evidence ; to which the counsel for the defendant ob-
459
408 SUPREME COURT [Philadelphia,
[Patton v. Kyan.]
jected, but the court overruled the objection, and permitted the
r*40Ql * en tries in the book to be read in evidence to the jury.
-" A bill of exceptions was then sealed by the judge, and
the error assigned was
1. That the court below erred in permitting said book to be
given in evidence to the jury, it not being a book of original
entries.
J. W. Ashmead, for the plaintiff in error. The only excep-
tion taken to the proceedings below is, that the court erred in
permitting the book of the plaintiff, under the circumstances,
to go to the jury, as the book of original entries of the plaintiff.
The card upon which the entries were first written, could only
be viewed as the original entries of the plaintiff, and the book
read to the jury was neither more nor less than a transcript
from the card. The entry was, however, made with pen and
ink, and is, on that account, a much stronger case, than where
it was first made with a pencil, either upon a slate or a fugitive
piece of paper ; because, in the latter instance, the very circum-
stance of a party making his first entry with a lead pencil, or
upon a slate, shows of itself an intention not to trust to it as
the evidence of the transaction. It is clearly otherwise in the
case of an entry made with ink, inasmuch as such a memoran-
dum is not easily liable to be effaced, and is just as permanent
in its character, as the entry transcribed into the book. But
three cases are to be found in the Pennsylvania reports, appli-
cable to the question before the court. The first is Ogden v.
Miller's Executors, 1 Browne's Rep. 147, in which Judge Rush
determined, that entries copied from a slate were not the orig-
inal entries of a party, and could not be read to the jury. This
determination has been nowhere expressly overruled. It is
true, that what is said by Judge Rodgers, in the case of Kessler
v. M'Conachy, 1 Rawle, 441, implies a doubt whether entries
copied from a slate might not be sufficient ; but it by no means
determines that the law is so. His language is, "that if
M'Conachy had made the entries (on a slate), and had after-
wards copied them in the book, it might have been deemed suf-
ficient." The learned judge, who delivered the opinion of the
court, is exceedingly guarded in his language, and avoids saying
that such would be the result ; but with great caution observes,
that it might be " deemed sufficient." The case of Ingraham
v. Bockius, 9 Serg. & Rawle, 285, is the only remaining case
applicable to the point, and it differs materially from the one
now before the court ; for in that case the plaintiff made but
one entry, and that in the book, while in this, the entry was
first made upon a card, and subsequently transcribed into the
460
Feb. 21, 1834.] OF PENNSYLVANIA. 409
[Patton v. Byan.]
book. The circumstance of the servant of the plaintiff making
a memorandum of the quantity of meat furnished each cus-
tomer, in order that he might inform his employer on his return,
is of no importance, inasmuch as it was not an entry made by
the plaintiff. Besides, it is worthy of remark, that Chief Jus-
tice Gibson, in delivering the opinion of the court in Ingraliam
t>. Bockius, lays great stress on the fact, that the plaintiff never
directed the entry to be made by his servant. Itns, besides,
important to notice, what cannot have escaped attention, r^ji/yi
*that this court has declared, over and over again, that "-
the principles applicable to the admission of books of original
entries, ought not to be extended. To sustain then the views
of the court below, the doctrine on this subject .must be extended
further than it has ever yet gone, and to an extent so great as
to endanger the security of the community ; for, upon prin-
ciple, no man ought to be permitted to make an entry upon a
card with pen and ink, and then deliberately destroy it, and
seek to give the mere copy or transcript of the entry in evi-
dence, as a book of original entries, with the view of subjecting
his neighbour to a liability.
Hazlehurst and D, P. Brown, for the defendant in error.
The question which arises is exclusively one of evidence, and
may be readily determined. It is, in fact, whether the book
received in evidence by the court below, was or was not the
book of original entries of the plaintiff in the cause. Whether
the entry was an original one is entirely a question of intention,
and dependent upon the particular circumstances of the case.
The very fact that the plaintiff below made her first entry upon
a card, and copied it into her book the same evening or the
next day, shows of itself an intention not to consider it as the
regular and proper entry. The plaintiff could, unquestionably,
make her first entry in the book, without having placed it upon
the card at all, and her book would then be undoubted evi-
dence. If this be so, why should the circumstance of a party
making, at the time of an occurrence, a memorandum to pre-
vent mistake in the entry, operate against it, if properly made ?
Be the principle what it may, authority is express and decided
on the point. The case of Ingraliam v. Bockius, 9 Serg. &
Rawle, 285, is decisive of the case, and settles the question
against the views of the plaintiff in error. In addition, the
plaintiff below has herself testified to the correctness of the
book received in evidence, and her oath ought to have con-
siderable influence on the mind of the court.
PER CURIAM. The principle of Ingraham v. Bockius is, that
461
410 SUPREME COURT [Philadelphia,
[Patton v. Kyan.]
a minute intended, not to be itself the evidence of the sale, but
to be used in the preparation of such evidence, is not an origi-
nal entry within the meaning of the term as it is used in the
books. If such be its effect, the material on which it is written,
or the size and shape of it, must be indifferent. Here it was
made on a card which was suspended by a book into which it
was transcribed, and which was destined to be the final means
of perpetuating it ; for the destruction of the card when the
transcript was made, shows that its office was but a temporary
one. It would be most unreasonable to preclude a shopkeeper
from making the regular, permanent entry in his day-book,
because he had taken the precaution to put down the transaction
on a fugitive scrap of paper, in order to insure a greater degree
f*41 11^ accuracv when the regular entry of it should come to
' *be made. Such a rule would be subversive of every-
thing like fair dealing ; and under the circumstances of the
present case, it is clear that the book was properly received.
Judgment affirmed.
Cited by Counsel, 4 W/259 ; 10 W. 249 ; 6 W. & S. 351 ; 11 H. 159.
Cited by the Court, 6 Wh. 190 ; 2 W. 458 ; 5 W. 432.
[PHILADELPHIA, FEBRUARY 21, 1834.]
Gratz against Gratz.
IN ERROR.
Tf the plaintiff and defendant in an action of partition, have, by agreement,
made partition between them, by which certain parts of the property are
united to form one division, and certain olher parts to form the other division,
the opinion of witnesses is not admissible in evidence to show that a more
equal and convenient partition might have been made by a different arrange-
ment of the parts.
It is no reason for reversing a judgment, that the court below rejected "sun-
dry documents, letters, and other papers," not brought up with the record or
in any way connected with it, but stated in the bill of exceptions to have
been "to and from the parties in the suit touching the premises in question,
and matters in dispute," and to have been offered by the plaintiff in error as
rebutting evidence to the jury, though similar "letters, documents, and other
papers as to dates " were previously read by the opposite counsel without ob-
jection by the counsel of the plaintiff in error, and without its having been
adverted to by the judge, that they were dated after suit brought ; and though
the judge rejected the documents, letters, and other papers offered, on account
of their being dated after the commencement of the action.
A submission of all matters in variance between the parties, is sufficient to
authorize the arbitrators to award a partition of real estate, and to direct in
what manner it shall be executed, provided the partition of the property in
question, was one of the matters in variance at the time of the submission,
462
21, 1834.] OF PENNSYLVANIA. 411
[Gratz v. Gratz.]
but if the dispute arose afterwards, an award upon it is void for want of
Authority on the part of the arbitrators to make it.
A parol agreement for the partition of lands, is within the act of assembly
for the prevention of frauds and perjuries, and does not pass the right which
one party had at the time of the agreement to the other, in that part of tl>e
property allotted by the agreement to be held in severally by the latter.
Nor are the facts of one of the parties employing and giving instructions
to a scrivener to draw deeds for carrying the partition into effect, and going
on the property with an artist and measuring off' and designating the lines of