
    M‘CLURE & ELDER, vs. BYRD.
    CLARKVILLE,
    Dec. 1808.
    CASE, for goods, wares and merchandise, sold and delivered ; plea, non assumpsit, & issue &c.
    The plaintiffs resorted to various modes of proof to establish the account. Some items, by disinterested testimony : other articles were proved to have been charged, in the hand writing of a clerk, who did business in the house and who was dead. Two charges, in the hand writing of the same clerk, did not specify the goods delivered, but stated the a amount as per bill. The plaintiffs proved by their own oath, to the amount of $ 75 (the most that is allowed by the act) under the book debt law 1756 C. 4. Ird 171.
    
    If a defendent, in account, avails himself of the amount of credits he must admit the amount of debts in mercantile transactions orders are not evidence that goods were received.
    Some dispute arose, in what manner the oath should he taken, when the court directed it to be taken thus ; “ the evidence &c. (as usual) concluding thus “ agreeably to the book debt law.” The act directs, that the person taking the oath, shall swear, he has given all just credits. The debts amounted to between five and six hundred dollars. The credits amounted to $ 400, leaving a balance of about $ 200.
    It was insisted by the defendant’s counsel, that deducting the two lumping charges, which could not be allowed, and giving the credits, which were admitted by the plaintiffs in their oath under the book debt law, the plaintiffs would be indebted-to the defendant.
    Some orders given by the defendant were produced by the plaintiffs, as evidence of demands to their amount.
   Humphreys J.

If the defendant avail himself of the amount of credits, stated and admitted in the oath of the plaintiffs, he must also admit all the debts ; he cannot take one part of the statement, without the other. Evidence of the hand writing of the clerk, who is dead, is proper to all the charges ; and it also appears, that the orders which had been taken up, is evidence of advances to that amount.

Powell J.

Thought the orders ought not to by received as evidence in this case, where goods were delivered : He agreed with Humphreys J, as to admitting proof of the hand writing of the clerk ; and gave no opinion, whether the defendant was obliged to admit of the amount of debts, upon insisting on the amount of credits.

Overton J.

Orders for the delivery of goods, when taken up, are not of themselves evidence of the delivery of the goods ; and this results from the course of mercantile business. When an order is given, nothing is more in practice, than to deliver the goods at different times, as they are wanting. The order is some times taken, and charged before any goods are delivered.

We all agree in admitting the hand writing of a deceased clerk as to the first items where the goods were specified. And where there is a lumping charge, if a bill of particulars were delivered, it seems to be sufficient. But it would seem that a lumping charge, without a bill delivered, would not be good ; and the reasons seem obvious. Every person, should keep his books in such a manner, that the person charged may see an amount of the goods charged, by which means, he will be able to acsertain whether he had the goods or not. And where such an account is exhibited against him, in an action at law, he will be able to defend himself, which he could not otherwise do, unless he had previously received a bill of particulars. Therefore the evidence of the general charges ought to be received, because it is stated per bill.

If the plaintiffs insist upon the amount of credits disclosed under the book debt law, they must take with it the amount of debits—altogether, or none.

Verdict for the plaintiffs for the balance of the account.  