Partridge v. Allen, December term, 1700, inferior court of common pleas, was, among other things, "as by account hereunto annexed stated in the plats book reference being had," &c. Judge Smith's Old Records 67.

The form used at the March term of the inferior court of common pleas, 1707, in W. Ardett v. B. Young, was,—

"In a plea of the case for that the deft. is & standeth justly owing & indebted unto the plat. as it is stated & set down in the plats book ready to be produced in court in the sum of £19,, 4,, 6, as by a copy of the account taken out of the plat book & hereunto annexed will more especially appear & he the deft being so indebted promised to pay the same yet notwithstanding the plat. hath often requested the deft to pay him the said sum of £19,, 4,, 6,, he the deft hath refused & still doth refuse to pay the same which is to the plat. dam." Judge Smith's Old Records 49.

Judge Smith says that in 1717, "the declarations on acct. annexed are like those 20 years before & allege no promise to pay & those on notes, book acct. & bills usually offer a profert." Judge Smith's Old Records 118.

In 1743-25 the great case of Sherburne v. Thompson ran the gamut of our courts. The papers are now in the files of the old court of appeals at the state-house. The suit was on book account. A copy of the account is on file; it occupies two columns and a half of long bill paper, written very closely. The plaintiff was a Boston merchant. He copied off his bill, took his book with him, and went before a justice of the peace in Boston, who compared the book with the account, and certified at the end of the account that he had done so; that the two tallied except in a single item, stating what that was. He administered the oath to the plaintiff, and in this way the plaintiff proved his case. Depositions as they were sometimes termed, or affidavits as we should term them, were sometimes used in the Bay colony before grand juries as early as 1629.

At an early day the adverse party was notified, so that he might be present and object to the witness's testifying if he saw fit. When the deposition came to court, if the witness was incompetent, or the testimony, the deposition was excluded. This rule has been modified as respects leading questions, where

the deposition must show that a special exception on that ground was taken at the caption, but otherwise is the foundation of the present practice. The adverse party might be present, hear, and object, but he could not cross-examine. The latter right was accorded, so far as I have been able to observe, long after the present century began. Within the memory of members of the bar still living, these depositions were taken in the narrative form. We owe the practice of taking them by interrogatories and answers to Judge Parker after he went upon the bench; but I am not aware that in the last century it was ever necessary to give notice of the administration of the suppletory oath. The paper and certificate of the justice of the peace in Sherburne v. Thompson was in essence the deposition. Actions on the case for not accounting, or "suits for a settlement," as they were commonly termed both by lawyers and laymen, were brought at a very early period, and as late as the time when Mr. Smiley was in practice in Grafton in this state.

In 1665 one Lockwood was sued to answer "in an action of the case for not paying nor giving him an account of a voyage to the West Indies & back again which the sd L did take on Nov. 1663 in the vessel Walter & Deborah whereof the sd B. doth own 1-4 part the sd vessel being of burthen 53 tons or thereabout with due damages." Judge Smith's Old Records 68.

In 1665 George Walton brought suit against W. Drew, “in an action of the case upon account for not giving the sd G. W. an acct. of a fishing voyage & not delivering the sd. G. W. his share of the fish & oil the sd W. D. being the master of the sd voyage." Judge Smith's Old Records 74.

Similar suits were brought until the Revolution. The suit of Samuel Moffat v. Peter Livius was entered early in 1768. This also was an action for not accounting for a voyage, and was brought by one of several owners. It was brought against one of the council. From its importance it brought into the case more than half of the entire legal talent of the province. An attachment of real estate was made by the sheriff, on February 4, 1768, at 7:50 P. M., and a summons was left on that day " at the last and usual abode of" the defendant. On February 9, 1768, the plaintiff also attached a schooner, valued at four hundred pounds. John Moffat, John Parker, John Pickering,

William Parker, and Samuel Livermore, the king's attorneygeneral and the great man of that generation, were of counsel. A variety of questions were raised in that case, to which it is unnecessary to refer ; but one objection is important for the present purpose. It is as follows:

"3dly. The account is not attempted to be proved by the appellant's oath or by the oath of any clerk of his but the attorney only swears that one part of the account is fairly transcribed from the appellant's books."

This point was overruled. Nobody knows the time when a plaintiff could not testify in support of his account in New Hampshire. But the courts have created a great amount of unnecessary confusion, both here and in Massachusetts, by neglecting the early history on the subject.

Mr. Washburn, after reciting in brief a portion of the early history in relation to books of account, says,—

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"But in 1654 the court, taking notice of the imperfect matters that are tendered many times for evidence before the judges with reference to shop books, and writings of like nature," passed an order requiring books to be kept in a particular form in order to be admissible as evidence. And for any wares sold,' the judges would not be willing to take the oath of the plaintiff in his own case, unless it be to the truth of the whole book,' except under certain limitations specified in the order." Washburn's Judicial Hist. of Mass. 56.

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On June 7, 1682, Plymouth colony established the following as the law:

"It is therfore enacted that all and euery Marchant, shopkeeper, dealler, &c., shall keepe a booke of theire dealing and trading fairely writting downe therein both debt and credit, and the said Marchants theire ffactors or servants or any of them that shall deliuer any such wares or Marchandice; makeing oath that the said book of accompts is true both for debt and creditt; such Booke of accompts shalbe held sufficient in law for the recouery of any debt within four yeers after the deliuery of any such goods. But if the defendant will take his oathe that hee had not those goods charged in the booke or accompt; or that hee hath payed for the same; then the case shalbe tryed and determined accodring to the best and strongest presump

tions the ptyes concerned shall produce."

ony Records 255.

II Plymouth Col

In Cleave's case, decided in 1782, the supreme court of Massachusetts said that "no one item or charge in cash must exceed 40s or $6.67," and put it upon the ground of "immemorial practice." 3 Dane's Abr., ch. 81, art. 4, sec. 2, p. 319.

In Cogswell v. Dolliver, 2 Mass. 221, the court held that "in actions of assumpsit for goods sold and delivered, evidence by a shop book, or other daily memoranda, with the supplementary oath of the party himself, if living, is a mode of proof admitted with us generally, and is made necessary by the course of business in transactions of that nature."

On May 19, 1669, the general court of the Bay colony enacted as follows:

"On complaint & consideration of sundry inconueniencies, both to creditors & debtors, through want of seasonable examination & ballancing of booke accounts, it is ordered by this Court, & ennacted, that all such booke debts as are now standing out, or that hereafter shall bee made, & that shall not, within three yeares after publication hereof, or within three yeares after such debt as hereafter shall bee made, bee accounted for or ballanced with the originall debtor, or his atturney, agent, assign, or other lawfull successor or substitute; and on accompt or ballance thereof, assured by specialty giuen for it, or witnessed by subscribing the debtor, or other accomptants name, to the creditors booke, or the subscription of the wittnesses to such accompt, shall not bee pleadable in any Court, vnless such booke debt shall, within the time before limited, bee prossecuted or proued in such Court as hath proper cognizance thereof, by euidence competant & approued by the sajd Court; and the euidence there recorded, & the reccord thereof, shall secure the creditor, his executores, administrators, & assignes, vnless the debtor or his assignes shall disproue the same within one yeare after such proofe made, or recouery of the sajd debt, if such debtor, his or her agent, atturney, assign, substitute, executor, administrator, or other lawfull successor, bee or shall bee within this jurisdiction, or else where, & haue due notice from the creditor thereof." 4 Records of Mass. (Part II) 422. "Order to determine debt bookes, &c."

The title was,

On May 28, 1679, the general court of the Bay colony enacted as follows:

"Vpon complaint of sundry inconveniencjes & pjudice arising by the law entituled Debts by Booke, if put in execution, wch law, vpon sundry petitions, hath, from time to time, been suspended, & now againe, by longer experience, found to be very detrimentall, this Court, on consideration hereof & what else is presented, see cause to repeale the same, & by the authority thereof it is hereby repealled to all intents & purposes." 5 Records of Mass. 212.

It is quite apparent from what we have seen of the practice, that neither of these two became a part of our law.

It is self-evident that the rule in Massachusetts was not a disabling, but an enabling, rule of practice. It was not intended to restrict, but to enlarge, the right to testify. In the mother country, for centuries, apparently by a rule adopted among the clerks as a matter of convenience, parties, at least the defendants, were allowed to testify to any item not exceeding 40s., without reference either to books of account or memoranda. This rule of practice was afterwards imported into the high court of chancery. Parties in New England, in an action of book debt or book account, were, at a later day as to cash, held to the standard thus made.

It is quite apparent, from the earlier practice which must have been unknown to Mr. Washburn, that in actions of account or for an accounting, in neither of which the declaration made the book the test, the plaintiff might testify to his account without reference to the book, but if either party desired it, the book might be introduced to affect the weight of his testimony. The records of the early practice in this state show beyond any reasonable doubt that neither the Massachusetts ordinance of October 23, 1630, relating to the commencement of suits, nor that of November 11, 1747, providing that declarations should be filed three days before trial, nor the order of 1654, to which Mr. Washburn refers, were ever adopted as the law of New Hampshire. A careful search has been made in the Massachusetts Records by a professional brother, but he has been unable to find the order of 1654.

Eastman v. Moulton, 3 N. H. 156, decided in 1825, is the