agreement, the writing must be produced, and must have the proper ftamp, and no parol evidence of the agreement can be admit ted; but when there is written evidence of a matter of fact, as a receipt for a fum of money, proof may be given of the fact of payment, or of a diftin&t verbal acknowledgment, as was fhewn in J. 2, fupra.

The preceding fection, respecting the proof of writing, is also of general application; and in point of fact, the fubject to which it refers is of much more frequent application in other cafes, than in verifying the signatures of deeds.

Upon the evidence of books of account, there is, in many respects, a confiderable affinity between the doctrine stated in the text of Pothier, and the practice of the English law. The doctrine of femiproofs, by which a perfon may obtain a decifion in his favour, by the teftimony of his books, confirmed by his own fuppletory oath, has not with us any kind of application. A perfon ean in no cafe require his own books to be received as evidence in his favour; but if the other party refuses to call for them, and the party himself is willing that they fhould be produced, it will fometimes lead to pretty strong inferences in the mind of a jury, with respect to the veracity and effect of other evidence.

One party has no right to compel the other to produce his books; but if notice is given for that purpofe, and they are not produced accordingly, not only may verbal evidence be given of their contents, but the mere refufal to produce them will always be considered as a very strong prefumption of their contents being unfavourable.

A person who requires the production of books belonging to another, must make his election whether they fhall be received as evidence; he has not a right first to inspect them, and then use them or not according to his discretion. Being admitted, their whole contents must be allowed as evidence; but that, as was before obferved concerning other written evidence, does not neceffarily conclude the veracity of their entire contents. A party cannot make any distinction with respect to what part shall be received, but a jury may distinguish with respect to matters of credit, and admit one part whilft they difallow the other; but without some circumstances to induce a particular fufpicion, it is unreasonable that fuch diftinctions fhould take place.

The following is a note of feveral cafes, which have occurred respecting the admission of different pieces of written evidence. "Where the draymen came every night to the clerk of a brewhouse, and gave him an account of the beer delivered, which he

fet

fet down in a book kept for that purpofe, to which the draymen fet their hands, and the drayman was dead, the book with his hand fet to it was held good evidence of a delivery. Price v. Lord Torrington, 1 Salk. 285. So, a fhop book was allowed for evidence : it being proved that the servant that writ the book was dead, and that this was his hand, and he accustomed to make the entries. Pitman v. Maddox, 2 Salk. 690. But where the plaintiff, to prove a delivery, produced a book which belonged to his cooper, who was dead, but his name set to several articles as delivered to the defendant, and a witness was ready to prove his hand, Lord Ch. Juftice Raymond would not allow it, faying, it differed from Lord Torrington's cafe, because there the withefs faw the drayman fign the book every night. Clerk v. Bradford, M. 5 Geo. 2. Upon an iffue out of Chancery, to try whether eight parcels of Hudson's Bay Stock, bought in the name of Mr. Lake, were in trust for Sir Stephen Evans, his affignees (the plaintiff's) fhewed first, that there was no entry in the books of Mr. Lake, relative to this tranfaction. Secondly, fix of the receipts were in the hands of Sir S. E. and there was a reference on the back of them, by his book-keeper, to the book B. B., of Sir S. E. Thirdly, the book-keeper was proved to be dead, and upon this the queftion was, whether the book of Sir S. E. referred to, in which was an entry of the payment of the money, fhould be read? And the Court of King's Bench, at a trial at bar, admitted it not only as to the fix, but likewise as to the other two, in the hands of Sir B. L., fon of Mr. Lake. And in Smartle v. Williams, cited by Lord Hardwicke, in Montgomery v. Turner, 1751, a fcrivener's book of accounts, the fcrivener being dead, was holden good evidence of payment. Bull. N. P. 282, 283. In Searle v. Lord Barrington, 2 Str. 807.

Lord Raym. 1370. 8 Mod. 278. 3 Br. P. C. 535, the court were of opinion, that an indorsement by the obligee, of a bond of payment of intereft, was good evidence to encounter the prefumption of payment, arifing from length of time, and ought to have been left to the jury, for they might have reason to believe it was done with the privity of the obligor; and the conftant practice is for the obligee to indorfe the payment of intereft; and that, for the fake of the obligor, who is fafer by taking fuch an indorsement than by taking a loose receipt; and the judgment given upon fuch evidence, was, on a bill of exceptions, affirmed in parliament; but in Turner v. Crisp, Hil. 13 Geo. 2. the Chief Justice refused to let the indorfement of the receipt of part of the money, fe cured by a bond which was made after the prefumption had attached, be given in evidence. 2 Str. 827. The debt book of an attorney, long fince deceased, where he charges 321. for fuffer

.

ing a recovery, two articles of which were for drawing and ingrof fing the furrender of a tenant for life, and which bill appeared by the book to have been paid, was held admiffible evidence of there having been fuch a furrender. Warren v. Grenville, 2 Str. 1129.: A bill of parcels, and receipt of a merchant abroad, was admitted to prove the plaintiff's interest in a cargo against the infurer. Raffel v. Boheme, 2 Str. 1127. A paper in the hand-writing of a testator, containing a list of bank notes found in his poffeffion at or before his death, was held, by Lord Hardavicke, inadmissible to his prove property in those notes; but he fent the cafe to be tried at law, obferving that the rules of evidence in general are the famein both courts as to matters of fact. Glyn v. Bank of England, 2 Vef. 38. Entries of a deceased steward in a common day-book, containing variety of matters, relative to his different employers, of money paid by perfons for trefpafs on a particular place, on account of one of thofe employers, were held admissible evidence, in an action relative to the right of fuch employer to the place in question, as they would have been evidence to charge himself with the receipt of the money. Barry v. Bebbington, 4 T. R. 414. An entry by the church-wardens of A. in their accounts, ftating the receipt of a sum of money from the chapelry of B., who that year difputed their ancient custom; but after being sued had paid it, and 1/. for costs, and the following writing at the head of the fame page: "It is an ancient cuftom thus to apportion our poor lay, B. to pay one fifth, &c." was held good evidence of the custom, the one entry as it charged the officers with the receipt of money, and the other as referring to and explaining that; and Lord Kenyon, faid, that even without that reference, he did not fee any objection to admitting the fecond entry as evidence proprio vigore, because ufages relating to parishes must be got out of the parish books; it is like the inftance of court rolls, which are frequently admitted in evidence, though they affect the rights of third perfons. However, it was not neceffary to decide upon that ground, though he had a ftrong opinion of it. Stead v. Heaton, 4 T. R. 669. On a question refpecting the identity of a place, the coals under which, and also a rent iffuing out of it, belonged to one of the parties un. der different titles, the entry in the book of a perfon under whom the party claimed the rent, but not the coals (which were the subject in difpute), of receiving the rent for a particular place, was held inadmiffible evidence; for, by Lord Kenyon, what one man does in his clofet ought not to affect the rights of third perfons; there is only one inftance in which this is allowed, namely, the books of an incumbent respecting tithes, which may be evidence for his fuc

ceffor,

ceffor, but that has always been confidered an excepted cafe. Outram v. Morewood, 5 T. R. 121.

In reviewing the preceding cafes, there are some which appear to be founded upon rather difputable principles. The cafe of the draymen figning the entry, and the ftill ftranger cafe of the fhop book, are inftances of perfons being affected by evidence made behind their back, with intent to preferve a charge against them, and which they had no opportunity to cross-examine. If the drayman and the clerk had told another person, that such circumstances had paffed, and that perfon had immediately made a minute of it in writing, it will not be fuppofed that a depofition, confifting ultimately of such hearsay evidence, would be allowed. If one man writes down that he faw a given act done, would the parties to that act be allowed to be affected by fuch a minute, any more than by a hearsay declaration? Would his fignature make the evidence any better? And is there any fubftantial difference, in this respect, between a stranger who observes a transaction, and a perfon who is an inftrument in it, and who is only from neceffity allowed to be a competent witness, having himself a degree of intereft in the subject. When a broker is agent for both parties, his minutes, which are part of the res gefte, would fall under a very different confideration.

The cafe of Lord Barrington was founded upon very found reasoning; at the time of making the entry (which, it is an admitted fact, was before the prefumption had attached) Serle could have no undue motive; the purpose was merely to indicate a difcharge. The bond itself would be perfect evidence of his claim; but in the cafe which immediately followed, it was not thought that a person whofe right, if adverfely contefted, was at an end, could revive it by any act of his own. Having no legal claim to 100%. he could not found a right to gol., by giving credit for 10l. Barry and Bebbington certainly went abundantly far, where a fteward, by charging himself to his employer with the receipt of a small sum of money, was allowed to charge a third perfon with the admiffion of a right. But Stead and Heaton feems to be directly repugnant to the cafe, in which the receipt of part of the money on the bond, after the prefumption had attached, was difallowed; for though, to a fmall extent, the entry made by perfons interested had a tendency to charge themselves, it, to a much greater extent, had a tendency to induce a charge in their favour against the persons to whom it related. It was preferved and recorded as evidence of the fubmiffion to a disputed right. The general effect and object of it were to fubftantiate that right in themselves. And if one public body fhall not be allowed to charge another

public body by their entry of a debt, it would be abfurd to let them obviate the objection, by subjoining the entry of a partial payment amounting to a recognition. If the perfons who made the entry had appeared as witneffes to prove the fact, retaining the fame character of inhabitancy, they would have been rejected as interested. Their death was allowed to give a weight to that as written evidence, which as oral teftimony could not have been allowed; contrary to one of the most effential rules upon the fubject, they were admitted to make evidence for themselves. As to entries in public books regularly and periodically kept, and perfectly free from all the imputations, which occur to an entry of fuch a nature as has last been confidered, their character is so materially different, that the establishing a propofition respecting the one cannot fairly induce a material argument to affect the other.

The particular exceptions from the rules of evidence in general, which apply to cafes of pedigree, and fome other fubjects, being equally connected with written and with hearsay evidence, the confideration of them is at prefent deferred.

SECTION. VIII.

Of the Statute of Frauds.

The advantages which result from fully and explicitly stating in writing, the object and terms of any civil tranfaction, are so obvious and confiderable, that almost every fyftem of jurisprudence manifefts a decided preference to written memorials over verbal representations, in evidencing the occurrences of focial intercourse.

The death of witneffes, the imperfections of their memory, their misconception, and fometimes their wilful mifrepresentations of the communications, which they are called upon to teftify, are productive of inconveniences which are ftrongly contrafted by the introduction of authentic monuments, in which the intention of the parties is fuppofed to speak for itself, and which are not to be affected either by the artful glosses, the inaccurate perceptions, or the natural infirmities, of cafual obfervers. This general obfervation may be applied, with particular force, to the advantage of establishing a criterion for distinguishing between acts which are confummated by a mutual intention, conclufively fixed and determined, and acts of inchoate and preliminary communication; between the contracting an obligatory engagement, and the making at cafual