
    No. 4.
    FIELD, GATES & CO. against SAWYER.
    
      Windham,
    
    1818.
    ACTION on book. Defendant prays oyer of plaintiff’s book of account, and it is read as follows :
    Mr. ZADOCK SAWYER,
    
      
    
    
      Mr. Everett for the defendant,
    objected, That the said item of chai'ge as aforesaid, does not give the plaintiffs a claim, in an action on book account. The 2d sec, of the act, vol. 1, 237, sustains the action of account, on book accounts, and the proper form is prescribed by statute. This does not alter the principle of the action of account lying at the common law. That the existence of privity, or credit by an open interchange of commodities, which gives rise to the specified charges as they may appear on producing the books is thatprmfy which is necessary, at the common law to sustain the action of account. Coke 1, 172. Lilly, Ab. 1, 18. Wood’s Institutes, 557. Shepard’s Touchstone, 10. By these authorities the action of account ■ could, at common law, be sustained only, 1. Against Guardian. 2. Bailiff. 3. Receiver. Or, in case where a privily existed in deed or fact, by consent of the parties, as in the two cases, where the defendant might be charged as Bailiff or Receiver. And the case of privity in law, as where the defendant may be charged as guardian in socage.
    The item on the books of the plaintiffs is against a stranger, and a single item amounting to ‡ 108,75; as well might the plaintiffs charge the defendant with a horse, an ox or a farm, which would not be admitted.
    This form of action is not to be found unless fairly and obviously within the statute-provision. For,
    1. It is more expensive. 2. It in effect, takes away the trial by Jury. 3. It admits the testimony of the party in his own ■cause. The object obtained -with these sacrifices, in cases of charge for a single item, is only substituting the poorer for the better form of action. The case of Ames et ah ». Fisher, is strictly in point.
    Contra, Hubbard, for plaintiff.
    The law has not precisely pointed out all the articles which are the proper subjects of book account; the general rule, however, is, that the charge must be confined to transactions between- the parties, where in the usual course of their business, they charge on book, articles sold and delivered, services performed, the use of personal chattels, &c. Swift’s Ev. 83. The rule of evidence is, that the parties may testify, as to the price and quality of the article, and the time and mode of payment; Same.
    Thus, goods sold at the common retail stores in the country, ' articles made and sold by common mechanics to their customers; articles also that are sold ai: wholesale, are the usual and proper subjects of book account; it is not the value or amount of the article which prevents its being the subject of book account, but it is the nature of the article. Thus, hogsheads or barrels of rum may be charged as well as quarts, &c. The case of Ames et al. v. Fisher, would serve in some degreé, to narrow the subjects of book charge ; but in that case the principal objection was, that from the nature of the article, there could be no known standard for the price, and therefore the defendant might be exposed to great fraud and injustice ; but in the present case, the value of the gin and hogshead are known as well as any other articles.
   The Court decided, to sustain the action, and rendered Judgment to account.

flee Set-Off. 3. New Trial, 5¿  