Dewey, J. The only evidence in the case to prove the items of the account under the charge bearing date October 11th, was the book of the defendant. Treating that book as properly admitted in evidence, it shows a charge made on the 11th of October, which was the Lord’s day. In the absence of any other evidence to control this entry, it must be taken to indicate a sale on that day, and we think it was incumbent on the defendant, in order to entitle him to recover for the articles thus charged, to show that in fact they were sold at a different time.
The presiding judge instructed otherwise, ar.d this exception to the ruling is sustained. Another item in the account of the defendant, that of $308, for “ seven gold American watches,” charged on the book under date of October 26, was clearly not a proper subject of book charge, and not to he proved by the book and oath of the party. This species of evidence was not the proper evidence to establish a sale of this magnitude and character. As to this charge, there was, therefore, no competent evidence to the jury. New trial granted.