
    R. J. Gage, Executor, v. John M’Ilwain.
    The book of a tradesman, made up from the statements of liis negro workman, was thought, by some of the Court, to be of very doubtful admissibility as evidence of an account for work done, although a notice had been affixed to the door, that such was the custom of the workshop; but conceding that the book was evidence, the Court held that it was only evidence against the customer at the shop, of the amount of work done.
    
    The book of a shop-keeper, or tradesman, is only allowed to prove the account sued for, and not any other fact which may arise collaterally in the case.
    Where much evidence has been received, some of which is incompetent, the case should, in general, be sent back for anew trial, as the Court cannot undertake to say on what evidence the jury decided.
    Tried before Mr. Justice Frost, at Union, Spring Term, 1846.
    This was an action on certain notes, and an account for ,$17. The notes were admitted. The proof of the account was, that Rogers, the plaintiff’s testator, carried on the blacksmith’s business, by his slave, who had entire charge of the workshop. That this man entered on a slate, which was hung up in the shop, all the work that was done, and the entries were transferred, by the testator, from the slate to the day book, which was offered in evidence. His handwriting was proved. It was also proved, that a notice was affixed to the door of the workshop, to the effect, that all persons who had work done there on credit, should be allowed to do so, on condition that they consented to be charged according to the memorandum made by the negro. It was proved that this condition was generally known, and that the defendant must have seen the notice, as he lived a few hundred yards from Union village, and was there very frequently, and passed the shop in going to and returning from the village.
    On this proof, the jury were instructed that, if they were satisfied the defendant had actual notice of the conditions of credit prescribed for work done in the shop, then they might find for the plaintiff; otherwise for the defendant. They found for the plaintiff.
    The defendant claimed a large discount for work done for the executor, since the death of Rogers, and for Rogers in his lifetime. The work done in Rogers'' lifetime, was for various brick masonry. An order from the defendant for the payment of money to Rogers, in 1837, was also proved. The only proof of defendant’s discount, except the testimony of Gunning, was, that about the date of the charges, work of the description charged, was done on the lots of Rogers, by the defendant and Gunning; the value of which work was proved by a measurement of it, made a short time before the trial. None of the witnesses could say whether the contract for the work was made with the defendant or Gunning, or with both jointly. Gunning, who was examined by commission, deposed that all the work was done by the defendant, who was the contracting party; and that the witness worked as a journeyman with him, receiving day’s wages. This witness also deposed that he had never owed Rogers any thing. To discredit him, the defendant produced an attested account, rendered by him to the plaintiff, wherein the estate of Rogers was charged as debtor to him, for nearly all the work included in the defendant’s discount; on which account was his receipt of payment in full. Further to discredit him, the book of Rogers was produced, to shew that he had owed Rogers an account. The defendant objected to the evidence of the luck
    The jury found for the puuntjif the notes, and allowed to the defendant a part of the discount. When the verdict was read, it was said, and the presiding Judge supposed it was admitted by the defendant’s attorney, that the claim for the work done since Rogers’ death, had been allowed in the credit given by the verdict. The.* had not been disputed by the plaintiff. The defendant appealed, on the grounds annexed.
    1. Because the Court permitted the book of accounts of John Rogers, deceased, to fcn given in evidence to establish the account sued upon.
    2. Because the Court permitted the same book of accounts to be given in evidence, by proof of the handwriting of said Rogers, to discredit the witness, R. Gunning. The accounts were made and rendered to Rogers by a negro blacksmith, and charged from his statement by Rogers.
    3. Because the account made against the plaintiff, as the executor of Rogers, was not allowed.
    4. Because the defendant’s account ought to have been allowed, either as payment or discount; and the verdict is, in other respects, contrary to law and evidence.
    Hcendon, for the motion.
    Dawkins, contra.
    
   Evans J.

delivered the opinion of the Court.

The meaning of the advertisement was, that all those who had work done at the shop should be bound by the report of the negro as to the amount of the work done: and if the defendant had been one of the customers of this shop, and this fact had been proved satisfactorily, then it may be that, if he knew of the advertisement, his consent to be bound by it might be inferred. But even then some of my brethren think the evidence afforded by the book in this case is of very doubtful admissibility; but conceding that the book was evidence, it is only evidence against a customer at the shop of the amount of work done. The book cannot be evidence of both branches of the proposition—that the defendant was a customer, and that certain work had been done for him. This would make the statement of the negro (for the book is nothing more.) sufficient to charge every man who happened to know that Rogers had put up such advertisement in his shop. But the error which has arisen from this, might, if it stood alone, be remedied by a release oí the amount of the account from the verdict, which the plaintiff’s counsel offers to do. But it appears that the witness Gunning, in his cross examination, said he never owed Rogers thing. To contradict him and thereby destroy his credit, the plaintiff was allowed to prove by Rogers’ account book, that the statement was fair. This book at most was only the declaration of a fact, which Rogers, if alive, was incompetent to prove, he being the plaintiffin the action. The book of a shop-keeper or tradesman is only allowed to prove the account sued for, and not any other fact which may arise collatterally in the case. But the entries in the book were not, of what Rogers knew himself, but of facts which he derived from the negro, that Gunning had had work done at the shop, and had therefore owed Rogers an account. From the report, it would seem there was much evidence besides this to falsify Gunning’s oath in the particular mentioned, but where incompetent evidence has been received, the case should in general be sent back for a new trial, as this Court cannot undertake to say on what evidence the jury decided.

The motion for a new trial must therefore be granted- and it is so ordered.  