#### JOHN COLBERT *vs.*WILLIAM W. PIERCY.

December 1842.

A single magistrate has a right to administer the hook debt oath, on a trial before him.

It is competent for a party under the *booh debt law*to swear to the price, as well as *to*the delivery of the articles stated in his account.

And it is competent for the opposite party to cross-examine the party, talcing his oath under that law, both as to the articles and the prices charged, with a view to contradict or discredit him, as he might do in regard to any other witness swearing to the account, the party so swearing being considered as a witness in his own cause.

The cases of the *State*v *Molier,*1 Dev. 263, ánd of *Kitchen*v Tyson, 3, Mur. 314, cited and approved.

Appeal from the Superior Court of Law of Cherokee county, at Fall Term, 1842, his Honor Judge Pearson presiding.

This was an action of slander. The plaintiff proved that some few weeks before the writ issued, the defendant had in several conversations about him said, “ old Colbert in his suit with me about the corn, swore to a lie, he swore I was to pay him $1 37s per bushel, when I had agreed to give him but ft 25 per bushel, and I can now prove he swore to a lie, for I have it in writing, and if he and his sons don’t cut their sails low, I will have his back whipped, though he is *78an old man.” The defendant, under the plea of justification, in evidence a warrant issued by the plaintiff against him for $¡20, balance of his account for corn. He also pro-¿need the account, in which 46 bushels of corn were charged to the defendant, at 01 374 per bushel, and credits were entered for various payments in money, reducing the balance to 020, and proved by the magistrate, that the plaintiff swore to his account under the book debt law, and, after he was sworn, said that he let the defendant have the corn at $ 1 25, if the cash was paid down, but if it was not paid, then the defendant was to pay .ft 374 per bushel; that the cash was not paid, and he had charged the 01 374, as agreed upon.— Much evidence was then offered by the defendant, to shew that the price of the corn was $1 25, without any condition, and by the plaintiff to shew, that if the defendant did not pay the cash, he was to pay 01 374 per bushel. The defendant’s counsel insisted, that the magistrate had no right to administer the book debt oath, and therefore that the plaintiff could not have been convicted upon an indictment for perjury, although the oath was false, and upon this ground moved the court to charge the jury, that the action could not be sustained. The court refused so to charge. The case was then submitted to the jury, who found for the plaintiff. A motion for a new trial having been made and refused, the defendant appealed to the Supreme Court.

*Clingman and Francis*for the plaintiff.

No counsel for the defendant.

Ruffin, O. J.

From the manner in which the objection is expressed, “that the magistrate had no right to administer the book debt oath,” it might be supposed it was contended, that the act respecting the proving of book debts did net apply to trials out of court. But it seems impossible that such a notion could be entertained, since it is perfectly certain, that ever since justices of the peace exercised any such jurisdiction, the most common subjects of it have been ac*79counts proved by the party’s oath and book. In *Molier’s*case, 1 Dev. 263, it was said, the jurisdiction of the magistrate was not to be doubted, and in that case there was a conviction for perjury upon precisely such a proceeding as that in this case.

But we are told, that the point, intended to be raised, was, whether the plaintiff could, within the meaning of the book debt law, prove or be examined to the price charged in the account, as having been agreed on by the parties. Not to speak of the singularity of such an objection being taken on the evidence offered by the defendant himself, on his plea of justification, we are satisfied that it is altogether untenable. In the first place, admitting that it was not competent to examine the plaintiff to that point, yet, as he was examined, if he swore falsely and corruptly, he committed perjury. The subject was within the jurisdiction of the magistrate, and the matter deposed to was material to that in dispute, namely, the sum which the defendant owed. In such a case the legal incompetency of one, admitted and sworn as a witness, does not screen him from the guilt or penalties of perjury. That is unquestionably law, and was so laid down in the case just cited. In the next place, the court is of opinion, that the party is competent to prove the price as well as the delivery of the articles. The act is not restricted to counts on a *quantum valebat,*but embraces every case of *indebitatus assumpsit.*Apprehending that we might be drawn into a mistake on this point by the punctuation in the later editions of .the Statutes, we have had recourse to the earlier publications of the laws, and they render the point still more clear. Swann’s edition of 1752, gives the act as it first passed in 1739, C. 3, in these words : “ That whenever any person shall bring any action of debt, or upon the case, and therein shall declare upon an *indebitatus assump-*sit.i or *quantum*valebat, or *quantum*meruit, for goods,” &c. This seems clearly to shew, that in every case of as-sumpsit, for a demand, within the limited sum, the party’s oath and book are evidence, provided only that the buyer and seller are alone privy to the contract. But those are not *80the strongest reasons for this interpretation. It is to be de-from other parts of the act, and necessarily results fr0m the nature of the subject. When the act speaks of “books of accounts,” it must mean books, as it was known they were universally kept; which is, by entering therein not only the articles sold or received in payment, but also the prices. Without the prices, the accouiit is not true. Such is the variety in quality and price of articles of .the same kind, that no just information of the state of the accounts can be gathered from books, in which only the articles are entered, without a price affixed. No third person can prove the value, unless he was also privy to' the delivery, so as to know what the kind and qualify of the thing were. Now the act makes not only the oath evidence, but also the book thus kept and thus known to be kept. The whole goes to the jury as evidence. Then, there is the provision, that the oath and book shall not be evidence to an amount exceeding sixty dollars; which can be enforced only by annexing the values to the articles. Furthermore, the party is to swear, that the book contains a true account of all the dealings, or the last settlement of accounts, and that he hath given the defendant all just credits. *A*settlement, in which the sums are not computed and the balance in money struck, is an absurd idea, not contemplated by the Legislature. As we conceive, the meaning of the act is, that, after the party has been sworn and made out by his oath, that his book has the requisite to make it evidence, the book proves the matters therein stated, as they are stated; subject, nevertheless, to being contested by the defendant, as provided in the fourth section, and as he could do, if the account had been proved by any other witness. It was held in *Kitchen v Tyson,*3 Mur. 314, that the party is made a witness in his own cause, and may be treated as other witnesses, and discredited. It follows, that he may be cross-examined, as to all parts of the account to which his oath applies, with the view to discredit or contradict him, either in respect to the articles, or prices charged, orto the credits entered or omitted. In this case, after the plaintiff had taken the usual oath, that this was a *81true account, and thereby had his book laid before the istrate, it was at the instance, and for the benefit of the de-fendaut himself, that the plaintiff was subjected to the special examination respecting the agreement touching the price of the corn, in order to shew that the account was not true.— That was an enquiry material to the controversy, and if ,he had sworn falsely and eorruptly upon it, the plaintiff Would have been guilty of perjury, as was expressly decided in *The State*v *Molier.*Judgment affirmed.

Per Curiam. Judgment affirmed.