
    Supreme Court of Errors and Appeals. Nashville.
    1813.
    EASLY v. EAKIN.
    
      \ >- Appeal.
    An account for the hire of a horse may be proved under 1756,4, 2 (Code 3781— 3786), known as the hook debt law. [See Johnson v. Price, 3 Head, 650.]
    Eakin commenced a suit against Easly, before a justice of the peace, upon the following account: —
    “ William Easly to Moses Eakin, Dr.
    1807, September, whiskey at sundry times, $0 93
    To the hire of a mare from the 16th September to the 19th November, 1807, at 50 cents per day, 32 50
    $33 43
    Eakin recovered a judgment before the justice for the amount of his account, having proved it by his own oath ; from which Easly appealed to the County Court, where a judgment was given in favor of Eakin, for a sum much less than he claimed, in consequence of which he appealed to the Circuit Court.
    Upon the trial in the Circuit Court, Eakin was introduced to prove his own account, under what is commonly called the book debt law. He swore that he had made a contract with the defendant in that Court, to hire to him his mare, at three shillings per day, to work in Easly’s wagon ; and that under the agreement Easly kept her for sixty-five days. The counsel for Easly objected that this was not such an account or demand as, under the act of Assembly, authorized Eakin to prove it by his own oath; but the Circuit Court overruled the objection. The verdict and judgment was then rendered in favor of Eakin, from which Easly appealed to this Court.
    The only error relied on, related to the admission of the evidence of Eakin.
    
      Goohe, for the appellant.
    The act of Assembly upon which the appel-lee relies, gives the right to persons having claims against others for goods, wares, and merchandise sold and delivered, or for work and labor done to prove their demand by their own oath. It is an undeniable rule that every statute which derogates from the principles of the common law, must receive a strict construction; and, therefore, when any person claims the benefit of the one in question, it being decidedly of that character, he must exhibit a demand that comes certainly within it. We must presume that the Legislature in using the words goods, ware, and merchandise, sold and delivered, and work and labor done, knew the meaning of them. The demand in this case comes under neither of these heads. It will not be pretended that it is covered by the former; and there is as little reason for saying it is by the latter. I imagine that no case can be found where, under a count for work and labor done, the plaintiff has been permitted to prove a demand due by the hire of a horse, gig, wagon, or the like. In such cases the books contain a particular form of declarations, which set out specifically the nature of the demand. Imp. Mod. Plead. 360.
    
      Hayes, for the appellee.
    The case of the appellee comes fairly within the spirit and equity of the statute. And although it be a good general rule, that every act of Assembly derogating from the principles of the common law, ought to be strictly construed, yet there is another rule equally incontrovertible, that in giving a construction to a statute, it is necessary and proper that the Court should take into consideration the evil intended to be remedied, as well as the obvious meaning of the Legislature. The case now before the Court is unquestionably within the equity of the statute, if it is not within the letter; and the appellee, in justice, is as much entitled to prove this account by his own oath, as if it were for work and labor done and performed by himself personally. Besides, if the subject is properly examined, it will be found that for services done by a man’s horse or servant, an action will lie as for work and labor; so that in this view of the case, the demand of the appellee comes technically within the words of the statute.
   White, J.

delivered the following opinion of the Court: —

Eakin sued Easly on an open account for the hire of a mare sixty-five days, at fifty cents per day; and on the trial he offered his book in evidence, connected with his own oath, to prove the account under the book debt law, passed in 1756, ch. 4; Hay. Rev. 64. The Court permitted him to prove it in this way, to which permission Easly excepted, and brought the cause to this Court by way of appeal.

The act of Assembly upon which this question depends, is in the following words: “ In all actions of debt, or upon the case which hath been or shall be brought, where the plaintiff hath declared or shall declare upon an emisit, indebitatus assumpsit, quantum valebant, or quantum meruit, for goods, wares, and merchandise by him sold and delivered, or for work and labor done and performed, he shall upon the trial of the issue, or executing a writ of inquiry of damages, declare upon his corporal oath that the matter in dispute is a book account, and that he hath no means to prove it but by his own oath,” &c.

It is urged that accounts for goods, wares, and merchandise sold and delivered, or for work and labor done, are those only which the creditor under the statute, can prove by his book and oath ; and that the account in question is neither the one nor the other; and that, therefore, such testimony ought not to have been received. '

It is true that in technical language as it is used in the English books, this account would perhaps fall more properly under the head of hiring than of work and labor. But the substance of the charge is for Eakin’s mare working sixty-five days in Easly’s wagon; and we are inclined to believe that the charge falls within the meaning of the statute. This is an old statute, and such items have for many years been proved under it.

The long practice under any statute ought to have great influence in affording a construction where the words are doubtful.

Let the judgment be affirmed.  