
    Punderson v. Shaw, Executor, of Shaw, Deceased.
    An article omitted in settlement of accounts, cannot be charged in a subsequent account; nor can tbe plaintiff’s testimony be admitted to support such charge.
    This was an action of book debt, and tbe general issue pleaded.
    As tbe case opened on trial, it appeared, tbat tbe only question between tbe parties respected one article of tbe plaintiff’s account, wbicb accrued antecedent to a settlement by them made and subscribed.
    ■Mr. Wait, for tbe defendant,
    objected to tbe testimony of tbe plaintiff, respecting tbe point in contest: He urged, tbat whether tbe article claimed bad been omitted in the former settlement, was a fact not proper to be ascertained by tbe testimony of tbe party: 'That tbe plaintiff baying acknowledged a settlement, under bis band, be shall not now be permitted' to come into court, and testify in contradiction to it.— He cited tbe case of Waldron v. Eldridge, where tbe same point was adjudged last term.
   By the Court.

A mistake in a former settlement canuot be admitted as a legal charge on book: Tbe party affected by it must have bis remedy by another kind of action. Tbe statute wbicb permits interested persons to testify in the action of book debt, is not peremptory. There may be many exceptions wherein be shall be excluded bis testimony. And wherever there appears a settlement under band, tbe court will never admit tbe parties to go over it; for it wordd open a door for great uncertainty and injustice. In tbe late case of Waldron, wbicb was an action of book debt, tbe question was, whether tbe parties might go beyond a former settlement, and it was adjudged they should not.

Dyer, J.,

dissenting. This is an action of book debt, and tbe general issue is pleaded; tbe cause, therefore, lies open for an inquiry at large. Tbe law admits tbe parties to testify in tbis kind of action, and if their testimony is confronted by any other kind of evidence, tbe court will duly weigh it. There may happen very many instances, where there is the same necessary for the admission of the party’s oath, to support a charge like this, as there could have been to support the original charge, and consequently the same reason.

The defendant, by not pleading in bar, has waived all benefit by this objection: A former judgment, or a settlement, is undoubtedly good matter of bar; but if the party will not plead it specially, he can take no advantage of it; therefore, the testimony of the plaintiff in this case is admissible.

The plaintiff then offered other disinterested witnesses, to prove the same fact; but they were refused by the court, because the article was not supportable as a charge on book.

Dyer, J.,

dissenting. The article charged, and now contended for, is admitted to have been a good charge on book, and in that way recoverable, if the settlement referred to does not conclude the plaintiff.

Note.- — ■ In this case the plaintiff filed a bill of exceptions, and carried the case to the Supreme Court of Errors; and there the judgment was affirmed.  