committed in excluding that sum from the account. As to the other item excluded by the court, some contrariety of judicial utterance exists in respect to the right of establishing the loan of money in large sums by the production of the books of original entry, unless the person so making the loan is a banker or broker. the memorandum and other documents offered in support thereof. The witness Frantz having identified the daybooks, containing Gasquet's original entries, as made by his bookkeeper, and the ledger, to which the defendant's account was transferred, the same were admitted in evidence as c rroborative of the bill of particulars attached to the complaint, except that all entries relating to the note and interest thereon, the balance of the accounts as yearly ascertained, and the interest thereon, the cash advanced to Karewski and Nunan, and the checks issued in favor of Falkenstein and Levi Strauss & Co., were excluded, and plaintiff's counsel excepted to the court's action in these respects, and contended that errors were thereby committed. If Gasquet's daybook contained any entry in relation to the origin of, or consideration for, the charge made against the defendant for the sum of $5,448.51, the bill of exceptions fails to disclose it. As we understand the transcript, this sum was charged against Decker in the Gasquet ledger as a "note," and also in his pass book, as hereinbefore stated. The daybooks offered in evidence have not been sent up, and, so far as apparent from the bill of exceptions, no mention whatever is made in the books of original entry of this sum. It is alleged in the complaint that the debt was incurred by the defendant's purchase of goods, merchandise, and property from Gasquet, and that no note had ever been executed as evidence thereof. We think the plaintiff had the right to contradict the entry made by Gasquet in his books, and to show, by competent evidence, that what was there designated a "note" should have been a statement of certain goods, wares, merchandise, and property sold and delivered, and the value thereof, which was provable by the books of original entry, and that nothing said by this court in Strong v. Kamm, 13 Or. 172, 9 Pac. 331, militates against this principle. The entry in a daybook made in the hurry and press of business does not rise to the character or dignity of a contract, or evidence the aggregatio mentium of the parties, so as to require the interposition of a court of equity to correct a mistake that may have occurred through the carelessness or ignorance of the bookkeep- | prove that it is the book of original entries; er; and hence, upon principle, the entries made in such books ought to be corrected, if necessary, to make them comport with the facts which should have been recorded in the first instance. The plaintiff having alleged the facts relied upon, which being denied, the burden of establishing them rested upon him. No memorandum in any book of original entries was introduced to substantiate the important fact referred to, nor was any testimony introduced, so far as discoverable from an inspection of the bill of exceptions, tending to show why the defendant should have been charged with $5.448.51, or any other sum, and hence no error was The transcript does not purport to contain all the testimony given at the trial, so that it is difficult to state, with any degree of certainty, the business in which Gasquet was engaged, but we think it fairly inferable from the bill of exceptions that he was a merchant, and conducted general stores at Cresent City, Happy Camp, and Gasquets. It was the rule of the common law that entries made in the regular course of business by a clerk in the shop books were admissible in evidence after the death of such clerk, on proof of his handwriting. Welsh v. Barrett, 15 Mass. 380; Walker v. Curtis, 116 Mass. 98. This rule was first extended in the United States to cases in which the person making the entry is still living, and verifies the memoranda, though he may not remember the facts so entered; but such entries are not admissible in the lifetime of the clerk, unless they would be admissible after his death, upon proof of his handwriting. Spann v. Baltzell, 46 Am. Dec. 346. The rule was further expanded in this country so as to admit in evidence entries made by the parties themselves, as well as those made by their clerks, to prove the price of goods, the sale or delivery thereof, or the performance of work or labor. Bank v. Knapp, 15 Am. Dec. 181; Merrill v. Railroad Co., 30 Am. Dec. 130. In Bracken v. Dillon, 64 Ga. 243, 37 Am. Rep. 70, it was held that, before the books of a merchant or other tradesman can be used to prove an account, it must appear that he has no higher evidence of its truth, and therefore that he had no clerk who sold the goods, or that the clerk, if he had one, is dead, beyond the jurisdiction, or otherwise inaccessible; if he had no clerk who sold the goods, or the clerk is inaccessible, then, before he can introduce the books, the bookkeeper, if accessible, must be produced to if he had none, or he is inaccessible, then he may prove that it is the book of original entries himself; books are secondary evidence, and only admissible ex necessitate rei; that the books will not establish considerable items for cash, nor accounts of third persons transferred to defendants, nor are they admissible at all to show the authority to make such transfer. They may be admitted to show that a transfer was made pursuant to previous authority. While books of original entry are admissible to prove the price, sale, and delivery of articles, and the performance of laber or the rendition of service, because such entries are made in the usual course of business, such books are generally inadmissible to prove the loan of large sums of money, because transactions of this character are usually evidenced by promissory notes, checks, and bills of exchange. Thus, in Veiths v. Hagge, 8 Iowa, 163, the defendant, by way of set-off to the plaintiff's action, pleaded an account which contained, among others, several items charged against the plaintiff as "cash $100," and “cash $146." After having produced the necessary preliminary evidence in verification of his books of account, and after having proved by one Jensen, who was defendant's clerk from March, 1855, to March, 1856, that plaintiff during that time was a customer of the defendant, and in the habit of borrowing sums of money of him from time to time, which were charged in said books of account, without offering any other evidence in support of said cash items, the defendant offered to prove the same by said books. The court charged the jury that "cash, except in small items, to the amount of ten dollars or thereabouts, which appear to have been furnished in the ordinary course of dealing between the parties, is not the subject of the book account, and cannot be proved by the books alone. But, to entitle the defendant to recover for such items, there must be other evidence than what the books furnish. If there is evidence, other than the books, that the money was loaned to the plaintiff, items of such character the jury will allow." Mr. Justice Stockton, in speaking for the court in deciding the case, after reviewing many decisions from other states supporting this principle, says: "We think the general rule is clearly established by these authorities that a charge for money paid' or 'money lent' cannot be proved by the party's book of accounts; that such transactions are not usually the subject of a charge in account; and that charges of that nature are not such as are made in the ordinary course of business by one party against another." To the same effect, see Lyman v. Bechtel, 55 Iowa, 437, 7 N. W. 673; Culver v. Marks, 122 Ind. 554, 23 N. E. 1086, 7 L. R. A. 489, 17 Am. St. Rep. 377; Lehmann v. Rothbarth, 111 Ill. 185; Kelton v. Hill, 58 Me. 114; Winner v. Bauman, 28 Wis. 563. While the loan of large sums of money is usually evidenced in the manner indicated, and the payment thereof by receipts, these items may be proved by the books of a banker or broker, when such is in pursuance of his ordinary business method. Furniture Co. v. Mason, 3 S. D. 147, 52 N. W. 671. What shall be considered as a large sum of money, the loan of which cannot be established by the mere production of books of account, will probably ever remain problematical. The growth of commercial interprise must necessarily expand the methods of transacting the business pertaining thereto, including the mode of evidencing such facts, and as courts are not called upon to make, but to enforce, the rules adopted by experience, it would seem to follow that what, a few years ago, would have been regarded as a large sum of money, must now be considered as a mere bagatelle, so that the standards as formerly fixed cannot longer remain as guides of procedure. Admitting that Gasquet was not a banker, and conceding that he was only a general merchant, we are not prepared, nor is it necessary, to say that the sum of $300 advanced to Karewski, and the smaller sums involved in this appeal, were "large sums," within the meaning of the rule discussed by the authorities, to which attention is called. We rest our decision upon the principle that the items adverted to, and excluded by the court, do not appear from an inspection of the original entries to have been money loaned to the defendant or furnished to others upon his orders. The production of the books of account did not, therefore, establish a charge against the defendant in respect to such items, and before the fact could be established testimony should have been introduced explaining the ambiguity, and imposing upon the defendant a liability therefor. The plaintiff having failed in this respect, no error was committed in excluding the items above referred to. If Gasquet took a note to evidence the sale of the goods, wares, merchandise, and property alleged to have been purchased by the defendant, as would appear from an inspection of the defendant's account of 1890 and 1891, the production of the instrument or the proof of its loss would establish its execution, and hence the note could not be the subject of a book account without rendering the defendant also liable on the instrument, if it should be found in the hands of a person to whom it had been assigned for value before maturity. Other errors are assigned, but, not considering them important, the judgment is affirmed. (10 Wyo. 181) BOARD OF COM'RS OF NATRONA COUNTY v. SHAFFNER. (Supreme Court of Wyoming. March 13, 1901.) BILL OF EXCEPTIONS - NECESSITY MATTER SHOWN BY RECORD-TRIAL ON PLEADINGSMOTION FOR NEW TRIAL-RECITALS OF BILL -SUFFICIENCY-CERTIFYING AND FILINGMOTION TO DISMISS APPEAL-ASSIGNMENT OF ERRORS-PETITION IN ERROR-NECESSARY ALLEGATIONS-AMENDMENT. 1. On appeal from the decree in a case which was, by stipulation, submitted on the pleadings, no evidence being offered, and the judgment entry showing the fact of the stipulated submission, there was no necessity for a bill of exceptions. 2. Where a case is submitted on the pleadings, no evidence being offered, under Rev. St. § 3746, defining a new trial as the re-examination by the same court of an issue of fact, a motion for a new trial is not a condition precedent to the right to have the deci sion of the lower court reviewed; and hence the failure of the bill of exceptions to incorpo rate such a motion was not ground for quashing it on appeal. 3. An objection to a bill of exceptions that Its recitals are untrue cannot be maintained in the appellate court, since the bill must be settled in the trial court. 4. A bill of exceptions was stamped with the clerk's filing indorsement, but the indorsement was not signed by the clerk. A certificate attached to the original papers, sent up pursuant to Sess. Laws 1901, c. 3, § 1, requiring that upon filing of a petition in error the clerk shall send up such original papers and a transcript of the journal entries, stated that such papers were all the papers filed in the case, and set out a list of them, including the bill of exceptions. Held, that the record showed a sufficient certifying and filing of the bill. 5. Where a bill of exceptions is filed in a case in which it is unnecessary, it will not be quashed on this account alone, if its form and recitals are sufficient. 6. Although the general rule is that the record on appeal should show the facts necessary to give the appellate court jurisdiction to hear the cause, under the statutory provisions gov erning appellate proceedings, and fixing the time and place for holding courts, and prescribing that only district judges shall preside over district courts, on an appeal from a district court there is no necessity for such a technical application of the general rule as would require each transcript from the record to contain the convening order, intervening or ders, and the order finally closing the case. 7. The supreme court has judicial knowledge of the various district courts, where and when they are required to be held, and also of the respective judges and clerks thereof. 8. The papers on an appeal from a district court were authenticated by the clerk's certificate as all the original entries in the case, as the same appeared in a certain journal of the records. The certificate showed that it was made by the clerk of the court from which the case was appealed, and was under the seal of such court. At the beginning of each order in the transcript was an informal statement of the term and date when it was entered, and at the end of each order, with one exception, was the name of the presiding judge. The papers were fastened together as required by su preme court rule 11 (26 Pac. xii.), and the transcript of journal entries was sent up separately, as required by rule 12 (26 Pac. xii). Held, that there was a sufficient compliance with Sess. Laws 1901, c. 3, requiring that, upon the filing of a petition in error, the original papers, or such of them as may be necessary to exhibit the errors complained of, and a transcript of the necessary journal entries, shall be transmitted to the supreme court, and also a sufficient compliance with the rules of such court adopted pursuant to the statute. 9. Though sufficient, the transcript was not in desirable form; the proper form_to_precede each entry being as follows: "Be it remembered that on the day of 19-, in the district court for the judicial district, in and for county," etc., "the following, among other, proceedings were had, to wit"; adding after the date, if so be the fact, that such date was one of the regular days of a certain term of such court. 10. An assignment of error to the overruling of a motion for a new trial cannot be considered where no such motion is embraced in the bill of exceptions. 11. Where, on a motion to dismiss an appeal, there was a separate and distinct assignmeut of error to the rendering of final judgment, and such assignment was not attacked, it was unnecessary to consider whether appellant had, by answering over, waived an assigned error in the overruling of its demurrer. 12. Under Rev. St. § 4251, providing that proreedings to obtain a reversal, vacation, or mod ification of judgments shall be by petition in error, such petition should describe with reasonable certainty the cause in which it is claimed that errors were committed, and the judgment sought to be reviewed, and should contain a statement of the cause wherein the judgment was rendered, and the date of such rendition; and hence, where a petition commenced with the statement that plaintiff in error claimed that there was error in the record and proceedings of the district court, filed therewith and made a part thereof, but no exhibit was in fact filed, the petition was insufficient. 13. In view of the fact that the petition was probably prepared before counsel learned of the passage of Sess. Laws 1901, c. 3, requiring an application to be filed with the petition in error for the record to be sent up by the clerk, instead of the old method of requiring appellant to file the record with his petition, and the error thus being probably due to inadvertence in not changing the petition so as to make it conform to the recent statute, the petition would not be dismissed without giving appellant an opportunity to amend. Error to district court, Natrona county; Charles W. Bramel, Judge. Action by Edgar B. Shaffner against the board of commissioners of Natrona county. From a judgment in favor of plaintiff, defendant appeals. On motion to dismiss and to quash bill of exceptions. Motion overruled. Alex. T. Butler, for plaintiff in error. Allen G. Fisher, for defendant in error. POTTER, C. J. The defendant in error moves to quash the bill of exceptions in this case, and also to dismiss the proceedings in error. The two motions were heard at the same time. The motion to quash the bill might be granted without material prejudice to the case, as there would seem to be no purpose to be subserved by such a document In this case, and the bill in question contains nothing but a recital of the various proceedings in the cause, all of which are shown by the record proper. It states that a motion for a new trial was filed and overruled, and an exception reserved to the ruling, but the motion itself is not incorporated in the bill. A demurrer to the petition on three grounds, viz., that the plaintiff has no legal capacity to sue, that several causes of action are improperly joined, and that the petition does not state facts sufficient to constitute a cause of action, was overruled, and that ruling was excepted to. Afterward the defendant answered, and plaintiff filed a reply. The cause was thereupon submitted for final judgment, by stipulation of the parties, upon the petition, answer, and reply; and upon those pleadings the action was determined by the rendition of the judgment now sought to be reviewed. No evidence was offered, and it is apparent that no issue of fact could have been presented under the stipulation submitting the case. The only facts which the court could possibly consider were those admitted by the pleadings, either expressly or because not denied. Under these circumstances, it would seem that a bill of exceptions was not necessary to preserve any exception, or to make anything a matter of record not already a part of it, unless, possibly, the written stipulation submitting the cause; but that was not embodied in the bill. However, the judgment entry itself records the fact of such stipulated submission. Of course, if the motion for new trial was required as a condition precedent to review in this court, it, and the exception based upon the order overruling it, could only be preserved by bill; but it is not conceived that such a motion was essential, since the trial did not involve the examination or determination of any issue of fact. See Rev. St. § 3746; Seibel v. Bath, 5 Wyo. 409, 40 Pac. 756. The absence of any necessity for a bill is not, however, the ground of the motion to quash. We think there is no merit in the grounds stated in the motion. One ground is that no motion for a new trial is incorporated in the bill. That fact does not constitute a good ground for quashing a bill, where such a motion is not required. Another objection urged against the bill is that its recitals are not true. Such an objection is not maintainable in this court, since a bill is to be settled in the trial court, and not here. The main contention, probably, is that the bill is not properly certified, or shown to have been filed in the district court. This objection is doubtless urged because of the failure of the district clerk to sign the filing indorsement upon the back of the bill. The indorsement is stamped upon the back, indicating its filing February 2, 1901, but the clerk's signature is lacking. However, a certificate attached to the original papers, which are sent up pursuant to the act of 1901,-Sess. Laws 1901, c. 3, § 1; supreme court rules 11 and 12 (26 Pac. xii.),-states that the papers "are all the papers filed in this court in the case wherein Edgar B. Shaffner is plaintiff, and the board of commissioners, Natrona county, Wyoming, is defendant, and are named as follows," and following that statement is a list of the papers, including the "bill of exceptions." The certificate is duly signed by the clerk, and bears the seal of the district court. The purported bill appears to be signed by the judge of the court. We do not think it can be held that the bill is not properly certified, or that it appears by the record not to have been filed. The clerk treated it as filed, and certified it to have been filed, and his filing mark, but without his signature attached, appears upon it. Notwithstanding that we do not now perceive the necessity for a bill in this case, and for that reason, as well as for the further reason that the bill in this record is nothing but a recital of record matters, it can be of no practical utility, the motion to quash must be denied, as we think none of the objections stated in the motion are well taken. The principal contention in support of the motion to dismiss is that the record is insuf ficient because it does not contain a placita. It is urged that the record should show when and where the court was held, the term, and the name of the judge and other officers present, in order that the appellate court may be properly and regularly informed, from an inspection of the record itself, that the proceedings complained of were had before a court. Our statute (Sess. Laws 1901, c. 3) requires that upon the filing of a petition in error the plaintiff in error shall apply to this court for an order directing the clerk of the district court to transmit the original papers, or such of them as may be necessary to exhibit the errors complained of, and a transcript of the journal entries necessary to exhibit such errors. Upon filing the application, it is declared to be the duty of the clerk of this court to forthwith issue an order for such papers and transcript. In the case at bar the original papers are here duly certified as such, and they are fastened together as required by rule 11 of this court. 26 Pac. xii. The transcript of the journal entries is to be sent up separate from the papers, as required by rule 12 (26 Pac. xii.), and it is so sent up in the case at bar. It is authenticated by the clerk as all the journal entries in the case named in the certificate, "as the same now appears in journal number two of the records of this court." The certificate shows that it is made by the clerk of the court in and for Natrona county, and the seal of that court is affixed thereto. At the beginning of each order in the transcript there is stated, although informally, the term and date when it was made and entered; and at the end of each order, with one exception, is appended the name of the presiding judge of the court. It has not been the custom in this jurisdiction to require the record to set out the convening order of the court, disclosing the name of the judge and other officers present, and the place and date when convened. Neither has such a practice usually prevailed in this court. Indeed, under our present statutes, a final der might be entered at such a time that it would not be associated with any convening order. Judgments and orders may in certain cases be entered out of term as judgments and orders of the court. See Anderson v. Matthews, 8 Wyo. 307, 57 Pac. 156; Schlessinger v. Cook, 8 Wyo. 484, 58 Pac. 757. It is, no doubt, the general rule that the record should show the facts essential to vest the appellate court with jurisdiction to hear the And so some courts have held that it must appear affirmatively by the record that there was a properly organized court, by which a lawful judgment could be rendered. 2 Enc. Pl. & Prac. 265. But under statutory provisions such as govern appellate proceedings in this statè, and where the time and place for holding courts are fixed by statute, and no one but a district judge may preside over a district court, although the judge of one district may hold court for cause. a judge in another district, we apprehend, Wyoming, filed herewith, and made a pari there does not exist a necessity for such a technical application of the rule as would require each transcript to contain the convening order, and the intervening orders of adjournment, and the order finally closing the term. This court has judicial knowledge of the various district courts, where and when they are required to be held, as well as the judges and clerks, respectively, of these courts. In view of the practice so long prevailing here, we are not inclined to adopt the technical conclusion of counsel for defendant in error, nor to insist upon the necessity of the practice contended for. We are, moreover, of the opinion that the statute regulating the transmission of the papers and transcript of the journal entries to this court, and our rules adopted pursuant thereto, are complied with by the record and transcript in the case at bar, since nothing appears therein to indicate that the court was not convened and held as provided by law. The certificate of the clerk identifies each order as one made by the district court for Natrona county, and as entered in the journal of that court. We wish to add, however, that the transcript is not in desirable form, although we do not consider it insufficient. The customary and proper method of preparing a transcript is to precede each entry with a recital substantially as follows: "Be it remembered that on the day of 190, in the district court for the judicial district, in and for county, the following, among other, proceedings were had, to wit." If the day named was a day of a regular term, it is well to so state, by adding after the date, "The same being one of the regular days of the term of the district court," etc. The petition in error contains the following assignments of error: (1) Error in overruling the demurrer of plaintiff in error; (2) in giving judgment for Edgar B. Shaffner, when it ought to have been given for the board of county commissioners; (3) in overruling the motion for new trial. The third assignment cannot be considered, since no motion for new trial is embraced in a bill of exceptions. It is contended that the exception taken to the order overruling the demurrer was waived by defendant's subsequent answer, and submission of the cause upon the pleadings. That matter need not be decided upon this motion. There is a separate and distinct assignment, viz., error in rendering final judgment, and that assignment is not attacked. The petition in error is objected to as incomplete and insufficient. Preceding the assignment of the errors complained of, the petition states: "The said plaintiff in error claims that there is manifest error, prejudicial to it, in the record and proceedings of the district court in the Second judicial district, in and for Natrona county, state of 68 P.-2 hereof, marked 'A,' in this, to wit." There was no exhibit filed with the petition. Doubtless it was prepared before information had reached counsel of the then recent enactment changing the method of bringing the record into this court. Anterior to the act of 1901 it was the duty of plaintiff in error to file with the petition in error a transcript of the record. Such a transcript would disclose the cause wherein the errors were alleged to have occurred, and the judgment appealed from. Failure to change the petition may probably be charged to inadvertence. As it stands, it is apparent that it fails to describe or indicate either the cause or the judgment. The title of the cause in this court may be entirely different from that in the trial court. Indeed, by going to the record sent up, it is different in this case; the parties being transposed. A petition in error should, with reasonable certainty, describe the cause wherein it is claimed that errors have occurred, and the judgment sought to be reviewed ought to be indicated by some certain description. A statement of the cause wherein the judgment was rendered, and the date of its rendition, should be embraced in the petition. We do not hold that a statement of the date of the judgment is indispensable, if it is otherwise clearly identified and described. The function of a petition in error is to secure the vacation, reversal, or modification of a judgment or other final order. Rev. St. § 4251. It is clear that it should point out distinctly the judgment or order, the vacation, reversal, or modification of which is sought. The petition in error in this case is insufficient in its present condition to entitle it to consideration. In view of the fact, however, that it was filed shortly after the change in the statute, we are not inclined to dismiss the case without allowing an opportunity to amend. Plaintiff in error will be granted 30 days in which to amend the petition so that it will show the judgment whose reversal is sought. In case such an amendment is not made within the time allowed, the proceedings will be dismissed upon the fact being called to the court's attention. For the present, the motion to dismiss will be denied. CORN and KNIGHT, JJ., concur. (26 Mont. 360) BURNS v. NAPTON, Judge. (Supreme Court of Montana. March 10, 1902.) BILL OF EXCEPTIONS-SETTLEMENT. Where a proposed bill of exceptions and amendments proposed by the adverse party, but not adopted, were neither presented to the judge within 10 days after the proposed amendments were served, nor delivered to the clerk for him within that time, as Code Civ. Proc. 1155, requires, the court properly re |