Bunting v. Bunting's Administrator

8 Del. 551

• Court: Superior Court of Delaware
• Decided: July 5, 1867
• Status: Published

Opinion

By the Court.

As long as the statutory provision making a book of original entries regularly and fairly kept of goods sold and delivered, and other matters properly chargeable in an account, with the oath or affirmation of the plaintiff in the action that it is such a book of original entries, admissible evidence in his favor, had been in force on the subject, we are not aware that this question has ever before arisen, in its present form, at least, in any ease in this court. The provision referred to, is, of course, not only a special and peculiar one, but it is also an ex- ceptiónal one; and the construction and application which it has hitherto uniformly received from the court, has heen quite as liberal and indulgent to parties plaintiff in such cases, as the true spirit and meaning of it can possibly warrant, we think, and we, therefore, cannot consent to extend it any further than the cases have already gone. The words of the statute are that such a book of original entries with the oath or affirmation of the plaintiff, shall be admitted, or shall be allowed to be given in evidence to charge the defendant with the sums therein contained. Revised Code, 184, 382; and as the object of the provision, as well as the effect and import of the words of it, was simply to make such book itself so sworn to by the plaintiff, competent or admissible evidence for him merely, subject, of course, to the inspection of the court and jury and the counsel of the defendant when admitted, and to all exceptions as to its intrinsic defects or deficiency in any respect apparent upon the face of it, or disclosed in the evidence in regard to it, the production of the book itself, we think, is imperatively demanded by it in every instance, and is indespensably necessary in any case, since it makes no provision for any secondary evidence in substitution of it, in the event of its destruction, or loss by accident. Besides, it requires both the presence of the book itself, and the oath or affirmation of the plaintiff that it is his book of original entries regularly and fairly kept during the time included in the account, to make it even competent and admissible evidence in the case ; and, therefore, neither can be sufficient without the other, we consider, in any event. The testimony offered must therefore be excluded.