
    GENERAL COURT,
    OCTOBER TERM, 1793.
    Beard, Executor of May, against Joseph Cowman’s Executor.
    THIS was a removal by writ of error from Anne Arundel county court, of a judgment for the defendant, had at September term, 1792.
    It was an action of assumpsit for work and labour and materials found, &c. by the plaintiff’s testator for the defendant’s testator. No assumpsit (within' three years) by the executor defendant to the executor plaintiff, was alleged in the declaration. The defendant pleaded the statute of limitations. Verdict and judgment for the defendant.
    The following bill of exceptions was taken at the trial, to wit:
    In this cause the defendant pleaded the act of limitations, and the plaintiff, having first executed the following release, under his hand and seal, to wit, “ I hereby release all my right, title, claim and interest, and commission as executor of Henry May, to the devisees and representatives of the said May, which I now have, or hereafter may have, on the amount of his claim and demand, against Joseph Cowman, executor of Joseph Cowman, for which suit is brought in Anne Arundel county court,” &c. offered himself as a witness to prove that the defendant had assumed and promised payment of the sum of money for which this action was brought, within three years next before the impetration of the writ original in this cause. But the court refused to admit the said plaintiff executor as aforesaid to be, sworn as a witness, because he was an incompetent witness, To which opinion the plaintiff excepted.'
    
      
      Key, for the appellant.
    Duvall, Pinkney and Buchanan, for the appellees
   The general court affirmed the judgment of the county court, and gave for reasons, that the executor plaintiff could not release so as to become a witness, for he could . . not discharge himself from his liability to pay costs; , , . .... , , that if he was a competent witness, his evidence could not support the action under the count in the declaration, because the plaintiff had not declared upon a promise made by the defendant to himself as executor.  