delivered the opinion of the Court.
One ground taken in support of the judgment is, that the defendant below, by giving judgment to account, has waived any objection to the form of action, and is thereby concluded, so that he cannot object to the propriety of the charges on book.
It has long been well settled, that a confession to account in an action on book account, does not conclude the defendant as to any article charged. The course has been, not to require the plaintiff, on oyer, to verify his account by oath : and in the hearing before the auditor, he is not confined to the oyer. If the defendant can show, by evidence before the Court, payment and satisfaction, for such articles as are given on oyer, or a release, or discharge, he may avail himself of such defence by plea ; but neither party can testify in Court, and generally, there is no use in craving oyer. In this case, if oyer had been given, the defendant could have pleaded nothing that would avail him; for no legal objection can be made to the charge of one or more law books; and whether they were delivered or not, or whether *148hpon a special contract or not, may have been,' and probably Was, confined to the knowledge of the parties.
B. Swift, for the plaintiff in error. h. B. Hunt, for the defendant in error.The plaintiff in error insists, that to entitle a party to recover in this form of action, the evidence arising from the production 0f a regular account in writing, is indispensable.
That a regular and correct account book, in which entries are made from time to time, as articles are delivered, or services performed, affords strong corroborative testimony, is certain; but such proof has been (perhaps unadvisedly) dispensed with by a course of practice; and an original account in writing, though made at a time subsequent to the delivery of the^rticles, and though disputed, has been received. He also insists, that where the price of the article must necessarily depend upon a special contract between the parties, no recovery can be had therefor in an action on book. Though this objection may be well urged in such case, yet it is not considered as properly applicable to a charge for law books.
It is said by the defendant, that the acceptance of a report of auditors is matter of discretion, and error cannot be predicted thereon. This position is not correct. Auditors are tN <> ,iruments by which the law is administered, and are ap» .'tinted without the consent of parties, and their decisions are subject to the revision of the court, and error in rendering judgment thereon, is as much cause for reversal thereof, as error in rendering judgment in any other case',
Although by the settled practice of the Court, the whole -account is by the auditor to be attached to, and returned with the report; in this case we have considered, from an examination of the record, that there is a further error, for which the judgment must be reversed.
It appears from the case, that the articles for which satisfacis claimed, were never delivered, and that, if there was any agreement of the parties in relation thereto, the contract was a special one, not only as to the price, but also as to the mode of payment, i. e. in a particular horse, to be apprized by a person agreed upon by the parties, and in grain. We believe it to be essential, to entitle the party to an action, that there should have been a transfer of the property; and that, without a delivery of the articles, no action on book account can be sustained. A different rule would be dangerous in the extreme. If a recovery can be had, in an action on book account, for goods not delivered, or for services not performed, by the testimony of the party to the contract; (and the law requires no other testimony in this action,) few cases will remain, to which the salutary rule of law, that a party cannot be a witness for himself, will apply.
Judgment reversed.