#### MARK McWILLIAM vs. DABNEY COSBY.

Under tlie book debt law, a plaintiff may prove by his own oath a balance due to him of sixty dollars or under, although his account produced appears to have been originally for more than sixty dollars, but is reduced by credits below that amount.

The case of Walker v Fentress, 1 Dev. & Bat. 17, cited and approved.

Appeal from the Superior Court of Law of Wake County at the Special Term on the third Monday of June, 1843, his Honor Judge Battle presiding.

This was an action ot assumpsit to recover the balance of an account for goods delivered and work and labor done. The account was originally for $203, but the plaintiff had given credit on it for $158 84, leaving a balance due of $44 16. The action commenced by warrant before a single justice, and was brought by successive appeals to the Superior Court, when the plaintiff declared on a special eon-tract and also on the common counts.

On the trial the plaintiff produced a witness who testified that the plaintiff, upon an agreement with the defendant, furnished him unburnt bricks at the price of .three dollars per thousand, but he did cot know how many were delivered nor the time when they were delivered. Anotherwitnessfor the plaintiff proved that he assisted in burning the bricks and that the plaintiff paid some money to the hands, but he did not know how much. The plaintiff’s counsel then proposed to call the plaintiff himself to prove the number of bricks delivered *111and the time when and also some of the other items in the account; but this was objected to by the defendant, 1st, because a party could not prove an account upon a special agreement by his own oath ; and 2dly, because the plaintiff’s account was for more than sixty dollars. The Court held that the evidence was inadmissible, and the plaintiff thereupon submitted to a judgment of nonsuit and appealed.

J. II. Bryan and J. B. Shepard fox the plaintiff.

No counsel for the defendant.

DaNiel, J.

The plaintiff’s warrant was for $44 16, and was brought to recover the balance of an account. On the trial, the plaintiff, being unable to prove his account by other witnesses, offered to prove the same to the amount of $44 16, by his own oath, under the book debt law, (Rev. Stat. ch. 58.) This was objected to, first, because the con-contract was special; and, secondly, because the account, which was rendered by the plaintiff, was for more than sixty dollars. In an action of assumpsit, if a plaintiff is unable to sustain a count in his declaration on a special undertaking, he may nevertheless recover upon any of the common counts in the declaration, which his evidence may fit. In the case before ns, the plaintiff abandoned his special count, and then the evidence was offered by him to support the common counts in his declaration, for goods sold, work done, and labor done. A magistrate has jurisdiction of alt debts and demands of sixty dollars and under, “for a balance due on any special contract, note or agreement, or for goods, wares, and merchandize sold and delivered, or for work and labor done, or for specific articles, &e.” Rev. Stat. c. 62, s. 6 The plaintiff, we think, was a competent uitness, under the book debt law, to prove the sale, delivery and price of any article or articles of goods, or other items in his account, for work and labor done, to the amount of sixty dollars, as all the items in the account appear to bear date within two years of the date of the warrant, and he *112could not prove them in any other way. The admission of plaintiff, in his account, that he had received of the defendant $158 84, must betaken altogether. For at the same time that admission was made,, the plaintiff also declared in his written account, that he once had a just demand (which is set out in the case) against the defendant, over and above his present demand, which said demand justly absorbed all the money received. The declarations of a party, made at the same time, must be taken as evidence altogether, as well those to discharge as those to charge him. The whole goes to the jury; and they may, if they think it proper to do so, give credit to one or more parts of the said declaration or declarations, and reject the residue. But the whole declaration is admissible evidence. Walker v Fentress, 1 Dev. & Bat. 17. By the book debt law, the plaintiff is obliged to give all just credits ; for he has so to swear. Then, when he proves, by his own oath, items to the amount sf sixty dollars or under, forming the balance that appears due on the account, if the defendant claims the benefit of the credit as a payment of the items thus proved, the plaintiff must necessarily be competent to state in reply, that those payments are not applicable to those items, because they have been applied toothers. It is true that the plaintiff cannot prove those others originally, so as- to- entitle him- to recover therefor, if the ground of an action, because the value exceeds sixty dollars; But when the defendant examines him upon the point of the payment of' his demand, then- sued for, it exists in the nature of the- thing, that he should be allowed to answer, if the fact be soy that they are not paid for, and to tell the reason why. Of course, the credit of the statement is for the consideration of the jury. If the plaintiff be honest enough to confess the credit, they will consider whether he has not also been honest enough to disclose truly its proper application.

Per Curiam, Judgment reversed and venire de novo awarded.