
    Kerr & Co. v. Love.
    April Term, 1793.
    Evidence — Account Books — When Not Admissible.— The book of accounts and oath of the party, are, in no case, admissible to charge a person with goods-delivered, by order, to a third person, unless the order be otherwise proved.
    Same — Same—Same.—If there be no other evidence to charge a person with a particular item but his admission and consent to be charged, on certain conditions, it can only be made upon the terms of that concession.
    Same — Same—Same—Case at Bar, — An entry on the books of the party, made by his clerk, who is not then to be found, together with the oath of the party as to the quantity of the article charged, though admissible as evidence in the case of a sale and delivery of goods, is not proper to charge the other party with those articles, delivered to the master of his vessel for safe keeping.
    Interest — Unliquidated Accounts. — Interest ought not to be allowed upon accounts unliquidated and disputed, but from the institution of the suit.
    This was an appeal from a decree of the High Court of Chancery, in a suit brought by the appellee for an account.
    
      
      interest — Unliquidated Accounts. — On this question the principal case is cited in foot-note to Skipwith v. Clinch, 2 Call 253; foot-note to McConnico v. Curzen, 2 Call 358; Stearns v. Mason, 24 Gratt. 494. See gen-, erally, monographic note on “Interest” appended to Fred v. Dixon, 27 Gratt. 541.
    
   The PRESIDENT

delivered the opinion of the court.

The debt claimed by the appellee, originated before the year 1776. The only evidence produced by him, respecting a quantity of molasses delivered by him, to the distillery at Norfolk, on account of the appellant, is, his own books, and oath.

The^appellant in his answer, having denied, that this article was delivered by his direction, the oath, and books of the appel-lee, (in no case admissible, to charge a person with goods delivered by order to a third person, unless such order be otherwise proved,) ought not to have been admitted as evidence, to prove that article. And as there is no other testimony, to charge the appellant therewith, except his own admission, and a consent to be charged upon certain conditions, it ought to be made upon the terms of that concession, and should operate only so far against him.

Another charge exhibited by the appel-lee, is of sugar and wine, delivered on board a vessel of the appellant’s, to the master thereof, for safe keeping; and this, is proved by an entry on the books of the ap-pellee, made b3T his clerk, who is not now to be found; together with the oath of the appellee, to ascertain the quantity. This sort of evidence, tho’ admissible in the cise of a sale and delivery of goods, is not proper in this case, to charge the appellant with those articles, delivered for safe keeping, to the master of the appellant’s vessel; since there is no evidence, that any part of them, came to his hands, except, what the answer admits — and therefore, this admission ought to be the rule by which the charge should be regulated.

As to the question of interest, this court, without controverting the general piinciples stated in the decree, are of opinion, that as the accounts in question were unliqidated, and disputed ’"'between the parties; they might have been adjusted, (notwithstanding the absence of the appellant,) with George Kerr his partner, or agent; or if such a connection were doubtful, an attachment bill might have been filed, at any time, for that purpose.

tTuder these circumstances, interest ought not to commence, but from the institution of this suit.

Decree reversed.  