
    AT NISI PRIUS, AT CARLISLE,
    APRIL ASSIZES, 1796.
    CORAM, SIÍIPPEN AND YEATES, JUSTICES.
    Josiah Matlack, surviving executor of Reuben Haines surviving executor of John Lukens against Frances Read, Matthias Slough, and William Irvine, surviving executors of Robert Callender.
    In debt on a judgment by executors, defendants shall not give in evidence under the plea of payment, that the plaintiff’s testator had renounced his interest in certain lands of the defendant's, and that his devisees have since sold part of them.
    Debt on judgment liad in Philadelphia comity, in March term 1771, for 4M. 10s. 5d. founded on a report of referees. Plea pay ment with leave, &e.
    Mr. Duncan for the defendants,
    offered to show by the deposition of George Morgan, one of the referees, taken under a rule of court, that on settlement of the accounts between Lukens and Cal-lender, the latter charged the former with one moiety of sundry moneys paid on divers surveys of lands taken up in partnership between them; that Lukens declined having any thing to do therewith, quitted all claim thereto, and promised to release to Callender all liis interest therein, which he had neglected to do ; that since the death of Lukens, his heirs had sold one of the tracts, and claimed title in the others, by moans whereof the devisees of Callender would be put to considerable expense in defending the lands which had been formally relinquished by Lukens.
    The testimony was excepted to by Mr. Hamilton for the plaintiff. And cur, it is not admissible in the present suit. Independent of any release, if the facts sworn to by Morgan are well founded, the devisees of Lukens can have no pretensions to these lands after the renunciation by their testator. "What they have done or mean to do, cannot operate against the plaintiff. As to him, the judgment is assets, for which he must account.
   Verdict pro quer. for 44l. 10s. 5d. debt, 61l. Os: 2d. damages, and six pence costs.  