The defendant relied on the plea of setoff, and to prove his account produced his books and "took the book-debt oath and stated that he had given all just credits to the plaintiff, and there was nothing due to him." The only item in defendant's account sold and delivered within two years before the commencement of the action was a sheepskin, at the price of $1.12 1/2; the other items charged to the plaintiff appeared, by the book, to be of more than two years standing.
The court charged that the jury had a right (if they believed the defendant) to take his oath and book, not only as evidence of a set-off as to the sheepskin, but also as evidence of the true state of the accountbetween the parties. To this the plaintiff excepts. There is error. The "book-debt" act provides that if certain conditions precedent are complied with the "book and oath" shall be received as good evidence for *Page 314 (462) the small articles so proved to be delivered within two years before action brought, but not for any article of longer standing.
Among the conditions precedent is an oath that the book contains a true account of all the dealings, and that all just credits have been given.
This is a restriction upon the right of the party to prove his account, in reference to the articles sold and delivered, by his book and oath, and cannot, by any fair construction, be made to confer an additional right, if proven by his book and oath that nothing is due to the other party, and of disproving all of his claims, except such items as are stated in the book, upon the ground that it contains all just credits, and consequently sets forth all the account to which the opposite party is indebted. How a provision in restraint of and as a condition precedent to a right can have the effect of enlarging that right it is difficult to conceive.
The idea that the book and oath are not only evidence for the several articles so proven to be delivered within two years, but is also evidence in reference to the amount of the claim due to the other party, and of the true state of the account between the parties, is evidently not expressed by the words of the act, and very clearly does not come within its meaning.
PER CURIAM. Venire de novo.
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