
    VAN HORNE’S EXECUTOR v. BRADY.
    The books of a deceased person made evidence — distributee, after release of his interest, a competent witness — promise to pay another’s debt is specific, not implied.
    The books of a deceased person are not evidence for the administrator’s plea, &c.
    
      Proof that he kept regular books, of some of the items, and that the clerk was not a competent witness, authorizes the couit at its discretion to admit the books.
    A distributee, releasing his interest in the estate, is made a competent witness.
    A promise to pay the debt of another is special, and must be so declared on: such a promise will not be implied in law.
    Assumpsit for goods sold. Plea non assumpsit. On trial, the plaintiff exhibited a book which he proved to be the testator's book of accounts, and offered to read therefrom an account against the defendant.
    Goddard, for the defendant,
    objected, and cited 8 John R. 211; 12 J. R. 461.
    
      Goddard
    
    objected his interest, and cited 2 Stark. Ev. 751; 3 Greonlf R. 165.
    
      JE. Stanberry, contra,
    insisted that the marriage was a voluntary act of the witness, and he could not by such act deprive the party of his testimony as to previous facts.
    
      Baldwin
    
    then released to the plaintiff his interest in the controversy, and was sworn. He testified to the regularity of the books in general — that the defendant dealt with the testator — he identified several entries in the defendant’s account; and testified further that the defendant had several times examined the account and made no objection, and that after notice was served on him to take testimony, he heard the defendant say he never authorized an objection to the account, for he knew it all right.
    Searle, for the defendant,
    objected.
    1. The promise is not in writing, and is to pay the debt of another.
    2. There is no count in the declaration upon such promise. He cites 1 C/i. FI. 339.
    
      H. Stanberry, contra.
   Wright, J.

The book is not of itself evidence.-

It was then proved that Van Horne kept regular books, by those dealing with him. That he had a clerk, one Baldwin, who made the entries, or part of them, but having since married the widow, is interested as one of the distributees of the estate.

Baldwin was then called as a witness.

Wright, J.

The witness is incompetent to testify to the jury, but he may relate these matters to the court, as circumstances going to show that the books ought to be admitted to the jury.

The book was then given in evidence.

The plaintiff called Moore to prove that he was indebted to the plaintiff, and that the defendant assumed to the plaintiff to pay the debt for him.

Wright, J.

An undertaking to pay the debt of another is specialf the law does not imply or raise such an undertaking, from a pre-existing debt. The debt in this case was owing by another person — the person against whom it is sought to raise an assumpsit, was not bound to pay, and owed no duty, from which the promise could be inferred. Without declaring specially in such a case, a recovery cannot be had, even if the promise is in writing. The evidence is rejected.

Judgment for the plaintiff.  