
    The Executors of Sarah Hedges, Deceased, against William Boyle.
    IN ERROR.
    1. Legatees of specific moveable property, and devisees having a contin-gent remainder in a part of the real estate, under a will containing a clause, “that in case the estate should not be sufficient to pay their legacies, they should receive only a proportionate part,” are not competent witnesses for the executors, m a suit brought against them for a debt of the testatrix, although the executors have paid the specific legacy to the legatees and given them a release.
    2. A physician’s bill, not made out m plain English words, or as nearly ■so as the articles will admit, cannot be received in evidence.
    This was an action of assumpsit, brought by William Boyle upon a promissory note, and a book account against the testatrix, for medicine. On the trial before the Court of Common Pleas, the note produced was signed with a cross, and tint instrumental ^'witness, who was offered to prove the notes, had also signed his cross, instead of writing his name : the witness proved the fact of testatrix signing a note of that description, but said that the only time he ever witnessed a note was in the spring, but the note bore date in January. It appeared, besides, that both the witness aud the testatrix could write. Under these circumstances, the counsel for the defendants objected to the reading the note in evidence. The court, however, admitted the note to be read in evidence to the jury. The defendants then offered two witnesses who wore legatees of specific parts of the moveable property, under the will of the testatrix; and also"devisees having contingent remainders in a part of the real estate; the will directing, that in case the estate should not be sufficient to pay their legacies, that each legatee should receive only a proportionate part. To these witnesses the executors had giveii a release, and had paid over their specific legacies. The plaintiff’s counsel objected to the admission of these witnesses, and the court sustained the objection. To these opinions of the court the counsel for the defendant took a bill of exceptions, and brought a writ of error to this court, and assigned for error—
    1. The admission of the note.
    2. The rejection of the witnesses.
    3. That part of the plaintiff’s account was a physician’s-bill, and was permitted to be read in evidence, though the copy of the account or bill of particulars rendered to the defendant was not in plain English words, as required by the statute.
    
      Chetwood $ Halsey, for the plaintiff in error.
    In support of the second error assigned, they cited 1 Term. Rep. 163-4; 5 John. 256; 1 Ib. 491; 1 South. 186; 1 Cain. 276; 3 Dal. 508; 3 John. Ca. 82; Phil. Ev. 48.
    In support of the third error, the statute of New Jersey.. Rev. Laws 628, sec. 3.
    
      Miller and the Attorney-General,
    
    contended — 1. That there was evidence enough to permit the note to be read to the jury;'but whether it was sufficiently proved, was a question for the jury. Doug. 375.
    2. That a specific legatee was an incompetent witness in an action by a creditor against the representatives of an estate. 3 Term. Rep. 32; Bac. Abr. title Leg. let. A. let. G. H.; 1 Vern. *162; 2 Ib. 205; Phil. Ev. 48, 52; 3 Gilb. Ev. 108. And that the payment of the legacy by the executor could not render the witnesses competent; for though the executor could release his own right, he could not that of the creditor.
   Eoed, J.

William Boyle recovered judgment in the Court of Oommbn Pleas, for the county of Morris, against the executors of Sarah Hedges, deceased, upon a promissory. note against the testatrix, and on a subsequent book account against her for medicine and attendance. The executors took a bill of exceptions on the trial, and assign for error ; that the note was permitted to go in evidence to the jury without proof of its having been executed by the testatrix. ■On examining the bill of exceptions, it appears otherwise. The boy who made a mark for his name as instrumental witness, swore distinctly to the identity of the instrument, to his knowledge and remembrance of the mark, and to the .signature oí the testatrix in his presence; he says the testatrix sent him into another room for paper to draw the note upon, and that she made him read it over loud to her after she had executed it. On this the court ordered the note to be read in evidence, and very properly left the jury to judge of the credit of the witness.

They further assign for error, that the court rejected two persons, offered as witnesses on behalf of the executors. These persons wore legatees of specific parts of the moveable property; and also devisees, having contingent, remainders in a considerable part of the real estate; and, in case the estate should not be sufficient to pay their legacies, the will directed that each legatee should receive only a proportionate part: the debts might be sufficient to absorb the whole personal and real estate, and thereby would defeat them of their legacies; and the debt in dispute was a large demand, far exceeding eleven hundred dollars ; the witnesses had therefore an immediate and strong interest in both branches of the estate, which would naturally influence them to guard and defend it against being impaired and diminished by persons calling themselves creditors. The case was likened to the remote interest of a parishioner liable to be rated for support of the poor, and others of that description, to which it bears no resemblance, .as the pauper may die, or the parishioner remove his domicil; but this interest is near and immediate. The record ^ of a creditor’s recovery is good evidence against these legatees to impair the amount of their legacies, or wholly to defeat them. And the release of the executors cannot discharge the lien which is given to creditors on both the real and personal estate, for payment of debts; nothing but a sale can discharge it; therefore I do not consider these, legatees competent witnesses to invalidate demands against property in which' they have an immediate interest, and that the court committed no error in refusing them.

Another error assigned depends on the third section of the act of February 10, 1818, whereby a physician is required to deliver his account, or “ bill of particulars, in plain English words, or as nearly so as the articles will admit.” This account was received in evidence, and yet it does not seem to have been made out in conformity to the statute, for it abounds with eontraetions, initials and symbols, that are not words, and at any rate are not English words ; and for this error I am of opinion that the judgment must be reversed.

Bossell, J., concurred.

Judgment reversed.

N. B. The Chief Justice was not present at the argument of the cause, and gave no opinion.  