ral principles of law he ought not to be a witness. The prin ciple on which this decifion is grounded, will permit action of book to be brought in all cafes of indebitatus affumpfit. If it be proper in fuch cafes, it certainly is equally fo in all other cafesand if the doctrine be carried to its proper extent, the confequence would be, that we ought to reject the maxim which has been adopted in the jurifprudence of all nations, that parties are, not to be witneffes in their own cafes-and exprefsly declare that parties may always be witneffes in their own cafes.-For who can discover any diftinction between the propriety of admitting the party to teftify, that he made payment on a note, for which action is brought, and that he has lost his receipt : and admitting him to testify in an action on book brought for the money that he paid it on the note, and has loft his receipt? Who can discover any distinction between the propriety of admitting parties to be witnefles in actions of implied, or exprefs promifes? The real ground of this action is juftifiable, because it admits a mode of proof neceflary and the best the nature of the cafe will admit of—but to extend it in this manner, is to break down the barrier against perjury, which courts have established, and to go over the head of first principles of the greated importance in our jurifprudence. It would have been much better, that the plaintiff in this action should have loft his debt, in confequence of lofing his receipt, than that the court fhould adopt fo dangerous a principle to afford him relief. For where is the fecurity for our written contracts, if they may be indirectly proved, to be paid in this manner-efpecially, when the original creditor being dead, cannot contradict, or counteract the testimony of the debtor. A greater encouragement to fraud and perjury was never given by the decifion of a court, and if it is held to be law by courts, the legiflature ought to interfere.

There has been fome doubt as well as difference of opinion with refpect to the points, about which the parties may teftify-It has been held, that their teftimony ought only to be admitted with regard to the quantity, quality and delivery of the articles charged, the letting, or ufing of articles hired, and the actual performance of fervice, with the time employed--and where there is any special price, or mode of payment agreed on, it should be proved by other

testimony

teftimony.-This would feem to be as far as the nature of the action required--but the practice has been to admit the parties to testify their whole knowledge respecting the article charged, as to delivery and payment in the fame manner as any other witneffes, and from the whole teftimony, to form their opinion as to the truth of facts.

Where any matter is pleaded in bar, or any queftion arifes on a collateral fact, the parties cannot be allowed to teftify. As the parties are admitted witnelles, fo by a parity of reasoning, interested perfons are.

The court cannot compel the production of books and papers, but where either party refufes upon the challenge of the other, every thing fhall be prefumed against the party refufing.

• As book accounts may fome times contain a great number and variety of articles, which it would be extremely inconvenient for a court and jury to examine and adjust, in order to facilitate the trial, it is provided by ftatute, that in all actions brought on book accounts, if the account be alledged to be above five pounds, the court may appoint auditors to adjust the fame, and award the balance, for which judgment fhall be rendered with additional cofts.

For the purpose of leffening fuits and terminating controverfies, it is provided by ftatute, that in every action of book debt, where it shall appear on trial, that the plaintiff is in arrear to the defendant, to balance book accounts, that judgment fhall be rendered in favour of the defendant, to recover the balance of the plaintiff with his coft; and that in this action, if the defendant neglects to exhibit his account on trial to be adjufted, and shall afterwards bring his action to recover the fame, if he recover judgment, he fhall not be allowed any coft, unless he can make it appear, that he had no knowledge of the former trial, or was inevitably hindered from appearing and exhibiting his account. Tho an action of book debt is pending, the defendant may bring his action on book, against the plaintiff-for the prior fuit will not abate the latter, tho it may affect the coft.

When the defendant exhibits his account before a juftice of the peace, and the balance exceeds four ponnds the juftice cannot give judgment for the balance.

a Action of book debt, will not lie to recover for mistakes in a fettlement of book accounts, or articles omitted in the fettlement but the party must refort to a different action, and point out the mistakes.

The admiffion of the parties to teftify in the action of book debt, can be juftified only from the neceffity of the cafe, and tho attend. ed with many inconveniences, is unquestionably the best mode to fettle book accounts that can be adopted. To admit the books of the parties without proof to evidence them, would produce the greatest injustice; to require proof of every article, would require an impoffibility; to allow the proof of part of the articles charged, to fupport the delivery of the whole, would open the door to the greatest fraud. It is beft therefore to let the parties in to tefti. fy, but to check and guard them by requiring regular entries of all the articles in the ordinary courfe of dealings-and where their entries on book, are not fuch as to confirin and fupport their teftimony, to difregard it; for the book is to be confidered as matter of evidence, and muft derive its credit, from its fairness and regularity, and from having been made at the time of tranfaction.

CHAPTER SEVENTEENTH,

OF SCIRE FACIAS, AND FOREIGN ATTACHMENT,

THE wrirt of Scire Facias, may iffue upon judgments, and re

cognizances, and bail bonds. When founded on a judgment, it is deemed a judicial writ, and is intended to carry fuch judginent into effect. In all fuch cafes, the writ must iffue from the court where the record is, on which the action is brought, and must be figned by the clerk. It however fo far partakes of the nature of an original writ, that the defendant may plead payment, a release, or any other proper matter, happening fubfequent to the rendering

of

Rogers, vs Moore, Sup. C. 1793. Co. Lit. 290. Fiz. N. B. 267.

of the judgment: a but he may not plead any thing, which might have been pleaded on the original action.

This writ lies where either of the parties are dead, to revive the judgment in favour of their executors, or adminiftrators, by which execution may be obtained. If there are feveral plaintiffs, or defendants, and one die, this writ lies to revive the judgment in fayour of the furvivors. Where judgment has been obtained, and execution ifucd against the eftate of any deceafed perfon, in the hands of his executor, or administrator, and is returned unfatisfied; this writ lies to affirm the judgment against the perfon and estate of the executor.

b Where damages have been affeffed, and coft taxed for laying out a highway, in a town; if the town neglect to pay, a fcire facias may iffue against the felectmen, to fhew reason why execution fhould not go against them.

Where judgment has been rendered on a bond having feveral conditions, which may be broken at several times, when judgment has been rendered upon one, and another breach takes place, a fcire facias may flue against the party..

On all bonds of recognizance, taken before any court to profecute an action, or an appeal, or to abide any fentence, order, or judgment of a court, and on all bail bonds, taken for the appearance of a party, fcire facias may be granted, when the conditions are broken, and a forfeiture accrued. But this important diftinction is to be obferved: In all cafes of recognizances to profecute actions, or appeals, the furety, or recognizer is abfolutely holden to pay the coft in cafe of a failure in the action, and the rendering of judginent against the perfon, for whom he is recognized. It is not therefore neceffary that execution be taken out, and returned non eft, for if the principal goes to goal, and takes the poor prifoner's oath, it will not discharge his bail, or furety. The feire facias may therefore iffue immediately after the judgment, in cafe of a failure to pay the cost recovered. But where a perfon recognizes for the appeal of an action, on the part of the defendant, he is responsible only for the coft fubfequent to the appeal, and does not release any preceeding bail. • Statutes. 96.

Green, vs. Dewit, 1790.

But

But in cafe of a bail-bond taken by the officer, for the appearance of the defendant, where the process is by attachment, or a bond of recognizance acknowledged in court, that the defendant fhall abide final judgment, the furety or bail are liable only in cafe of the principal's avoidance, and a return of non eft inventus of the execution.

:

This provision of law, is calculated to furnish debtors with the means of keeping out of prifon, when they can find bail to be ref ponsible, that they fhall be forth coming, to be taken on the execution. The principal is confidered as being in the cuftody of the bail and as the creditor has no claim only for the body of the debtor on the bail, if he can be had, to be taken in execution, the bail fhall be exonerated., The furety may before, or at the time of rendering final judgment, bring the principal into court, and move to be discharged; upon which, the court fhall order the keeper of the goal to receive him into cuftody, that he may be taken upon execution. If the principal be furrendered up in court, an entry thereof must be made by the clerk of the court, for nothing elfe can be evidence of the fact, and parol poof could not be admitted. If there be no furrendry, then it is the duty of the creditor to take out his execution, and ufe all due diligence to take the body of the debtor; and if he be taken, then the furety is exonerated but if the principal avoids, and cannot be taken on the execution by the use of due diligence, then the furety is liable.

The return of non eft inventus on the execution must be fairly obtained, or the furety is not liable; for where the creditor by fome artifice procures the execution to be returned non eft inventus, merely with a view to fubject the bail, when the principal might have been taken, by ufing proper diligence, he shall not be allowed to maintain this action. As where the creditor kept the execution till within a few days of its expiration, and then gave it to an officer, who went once to the house when the debtor happened not to be at home, and then immediately returned it non eft inventus: the creditor then brought his action against the bail, but it appearing on proof that the debtor was at home publickly, both before and after the officer was at his houfe, and that he thes happened

a Kirby Rep. 18.