224 HARVARD LAW REVIEW. y To sustain the decision in the principal case it will then be necessary to distinguish between the wrongful institution of a prosecution and the wrongful carrying on of one after it has been wrongfully commenced. But is it not a question for serious consideration whether the grounds of public policy which forbid an action for the former prosecution unless it has terminated favorably to the accused do not also apply to this action for the latter wrong? All this is meant by way of argument rather than as criticism. Shop-Books will up. — Order XXX. Rule 7, promulgated by the Eng- lish Supreme Court in August, 1894, to the effect that, on the hearing of the summons, the court or a judge may order that evidence of any par- ticular fact, to be specified in the order, shall be given by statement on oath of information and belief, or by the production of documents or entries in books^ or by copies of documents or entries, or otherwise as the court or judge may direct, (35 Weekly Notes, 1894, Sept. i,) is a noteworthy step, and one of some importance in the law of evidence. In spite of the reliance placed by merchants upon the accuracy and trust- worthiness of commercial memoranda, account-books, statements, receipts, etc. ; in spite of the fact that this confidence in their responsibility as modes of proof has been recognized and enforced in the Roman, French, Scotch and American laws (though to different extents in the various States of the Union); in spite of an English statute (7 Jas. I. c. 12), as yet unrepealed and to be found as still law in Vol. I. of the English "Statutes Revised," p. 691, — the English upper courts, at least, have steadily regarded this admission of shop-book evidence as inconsistent with the principles of common law, and have done their best to discredit it on that ground. Although text-writers have deplored this attitude of the English courts, as one founded in a misapprehension of the law, and have endeavored to encourage as much as possible the admission of such evidence, (Thayer, Cases on Evidence, 470, note, 506, note ; Greenleaf on Evi- dence, § 118 et seg., and notes; Taylor on Evidence, 7th ed., § 709,) yet with the exception of the relaxation in the Chancery Procedure Act of 1852, the English courts have almost unwaveringly maintained their attitude until the present time. Now, however, by a sudden and decisive change of front, they have boldly adopted in a generalized form that rule against which they so bitterly fought, and, in their latest batch of orders of court, have given a decided recognition of the fact that they had gone too far in discrediting that evidence, on which business men almost implicitly rely. Fletcher v. Rylands. — Although there is probably no decision of the Supreme Court of Massachusetts exactly in point, its tendency, at least, appears hitherto to have been strongly directed toward the doctrine of Fletcher v. Ey lands (L. R. 3 H. of L. 330). That case is cited again and again, in many decisions with marked approbation, in few, if any, with anything approaching disapproval. Indeed, taking in consideration the long and respectable line of dicta that way, it was to be anticipated, perhaps, that that doctrine would finally be adopted as the settled law of the Commonwealth. Such expectations have, however, received a rude shock in the latest decision of that court, James Cork et alv. Barney Blossom et a I.
