#### Samuel Smith *et al. versus*Thomas Sanford.

/n assumpsit on an account for butcher's meat supplied by the two plaintiffs, who were partners, they offered in evidence certain books, which they testified were books of original entries 3 and they further testified, that it was their custom for the partner who carried round the meat to their customers, to make chalk scores on the cart, stating to whom the meat was sold, and the quantity and price, from which scores, on the return of the cart on the same day, and before it went out again, it was the custom for the otheV partner to make entries in the books of original entries. It was *held,*that the books offered, together with the testimony of the plaintiffs, were competent evidence to support the action.

Assumpsit by two copartners in the business of victuallers and butchers in the town of Troy, to recover the sum due on *144an account for butcher’s meat supplied to the defendant from January 1828 to December 1829.

*Oct. 27th.*

*Apr. 24th,*1832, *at Taunton.*

At the trial, before *Shaw*C. J., the plaintiffs were sworn to make true answers, and thereupon they offered certain books, which they testified to be books of original entries, the whole of the charges in which, so far as they regarded the account with the defendant, were made by one of themselves. They also testified, that at certain seasons of the year it was their custom to carry meat round in a cart to their customers ; on which occasions it was their custom for the one who carried round the meat, to make chalk scores on the cart, stating to whom meat was sold, and the quantity and price ; from which scores, on the return of the cart on the same day, and before it went out again, it was the custom for the other partner to make entries in the books of original entries ; and that many of the charges to the defendant were made in this way.

It was objected that these were not original entries made by the party who delivered the goods, within the rule allowing the books of a party, verified by his oathj to go in evidence to the jury ; but the objection was overruled, and the books thus verified were admitted as competent.

*A. Bassett*and Warren, for the defendant,

said the ruling of the chief justice carried the doctrine in regard to this kind of evidence, further than any adjudged case. The fact of the delivery of the meat wants proof. The testimony of the partner who made the chalk marks, is not suppletory, for the marks were rubbed out; and the partner who made the entries-in the books, could not swear that the chalk marks were correct. *Prince*v. Smith, 4 Mass. R. 457; *Faxon*v. *Hollis,*13 Mass. R. 428.

Battelle, for the plaintiffs,

cited the same cases; also *Vosburgh*v. *Thayer,*12 Johns. R. 461 ; *Poultney*v. *Ross,*1 Dallas, 239.

Putnam J.

delivered the opinion’ of the Court. We do not think that the case at bar differs in principle from *Faxon v.*Hollis, 13 Mass. R. 428. There the plaintiff made his original entries upon a slate, and rubbed them out when they were by him transferred into the book which was offered in evidence and which was kept in a leger form. In the case. *145at bar there are two plaintiffs, and they testify that the original entries were made upon their cart, in chalk scores, by the one who delivered the meat to their customers, and were transferred to the book by the other on the same day. The‘scores, we presume, were then rubbed off from the cart, and then new scores were made as the meat was delivered from time to time.

The Court well observed; in *Prince*v. Smith, 4 Mass. R. 457, that, it is essential to this kind of evidence, that the charges appearing in the hand-writing of the party, are in such a state that they may be presumed to have been his daily minutes of his business and transactions, in which regard is had to the degree of the education of the party, the nature of his employment, and to the manner of his charges against other persons.

Now it might not be so convenient for the butcher to make his entry on a slate, as on his cart, at first. If it were honestly made upon the cart, and honestly transferred to the book, it would seem to be as worthy of credit as if it were made originally upon a slate and then transferred to the book. We think, under our usage, that such a book is to be received as competent evidence ; but the credit which should be given to it, after all, is to be determined by the jury. And as both the parties have testified as to the course which they pursued, and the jury have been satisfied with their evidence, we think that their verdict is to be confirmed and that judgment should be given upon it accordingly.1

1

*Ingraham*v. *Bockius,*9 Serg. & R. 285; *Patton*v. *Ryan,*4 Rawle, 408; *Kessler*v. *M'Conachy,*1 Rawle, 441. But such a book is not admissible, where the entries have not been transferred to it, till after the lapse of several days from the time when they were originally made. *Forsythe*v. *Norcross,*5 Watts, 432.