
    WILLIAM ADKINSON vs. SAMUEL W. SIMMONS.
    Under the book debt law, Revised Statutes, chapter 15, in order to entitle the party to reoover,he must swear, not only that he ‘'sold,” but also that he actually ‘‘delivered,’’ the articles for the price of which the suit 13 brought.
    Appeal from the Superior Court of Law of Bertie County, at the Fall Term 1850, his Honor Judge Caldwell presiding.
    This is a warrant for a sum due by account, and the claim of the plaintiff is for the price of 5 stacks of fodder, sold and delivered. Plea, non assumpsit; andón the trial in the Superior Court, the plaintiff proposed to prove his demand under the Book debt act. On being sworn, he stated, amongst other things, that he purchased five stacks of fodder from a neighbour, and that the defendant knew of the purchase and knew the fodder; that a few days thereafter the defendant and he met at a place, about seven miles from the fodder, and the former proposed to purchase it, and the plaintiff offered to take $2 85 per stack for the whole; that the defendant wanted time to examine the fodder, but the plaintiff told him, that he must either agree then to take it or he could not have it at ail, as he, the plaintiff, must sell it or move it, and he wished to have no further trouble with if; that thereupon the defendant said, ‘ I will take it,” and the plaintiff replied, “then it is your fodder,” to which the defendant said “yes.” The plaintiff further stated, that he did not know that the fodder ever went into the defendant’s possession, or that he ever -exercised any dominion over it.
    
      On that statement the Court refused to admit the plaintiff’s book in evidence, and held that the plaintiff could not recover, and from a judgment against him he appealed.
    
      Smith, Winston, Jr., and Bragg, for the plaintiff.
    
      A. Moore, for the defendant.
   Ruffin, C. J.

The book was properly excluded, and there was no evidence competent to establish the demand. Although assumpsit may lie for the price of goods bargained and sold, yet it must be sustained by disinterested witnesses. It is only in suits for “goods sold, and delivered,” that the plaintiff and his book are made competent by the statute. The act is express upon that head. It repeats more than once, that the deli very, is to be proved; saying, that if the plaintiff will declare on oath, that he hath no means “to prove the delivery of such articles” as he professes to prove by his own oath but by his book; and also, that the articles contained , in the book, and by him so proved “were bona fide delivered;” then, the book and oath shall be received, “as good evidence for the several articles so proved to be delivered.” Rev* St. Cb. 15. It is clear, therefore, that there must be a bonafi.de or actual delivery established by the party’s oath, before he can recover on the evidence of his oath and book; and the reason seems manifest. It is to lessen the danger of perjury, by the departure from the rule of the common law, whereby a party was excluded from being a witness for himself. For, there would be great danger in allowing one to prove for himself special agreements for sales, unaccompanied by acts, openly denoting the change of property. It is a wholesome provision, therefore, that the oath, as to the contract of sale, should be corroborated by the further oath of the party to the delivery of the thing, since, if false, the falsehood in the latter point is much more open to detection than in the former, and in the same proportion the temptation to perjury and its frequency are diminished. There was not only no delivery in this case, but the defendant, not having paid or tendered the price, wss not even entitled to the possession. 2 B. Com. 448.

Per Curiam. Judgment affirmed.  