
    STEWART vs. MASSENGALE AND LAUGHLIN.
    What testimony is adminissible to prove a surrender by Dall.
    
      Scire Facias against Bail.
    
    1st. plea surrender in court.
    2d. Plea surrender out of court to the sheriff in discharge, with verifications, replications, and issues on both.
    Parol proof of a surrender in court, was offered, which was objected to.
   Overton, j.

The proof cannot be received, as such surrender in court is required by law to be recorded, and the only evidence is the record. And in relation to the second plea, there should be a receipt under seal from the sheriff. The bail bond is under seal, and to discharge it, there should be evidence of as high a nature, agreeably to the principles of the common law. The relaxations of this principle, by statute respecting payment, &c. do not reach this case, which stands on the ground of the common law. The pleading on the first plea, is certainly wrong—it should have been an issue to the court, instead of the country.

Powel, j.

(absent Campbell, j.)

I agree with opinion delivered as to the first plea. In relation to the nature of evidence, admissible on the second, I am not perfectly satisfied; and as we will have to award a re-pleader, let the evidence proceed, and we shall be more fully in possession of the whole case.

Overton, j. accorded; upon which the sheriff, who was suggested to have received the surrender, was offered as a witness to prove it. He was objected to, on the ground of interest.

Campbell, j. who was now in court, was of opinion that he should be sworn.

Powell, j. and Overton, j. The testimony of witnesses present three distinct views, as respects plaintiffs, defendants and themselves; this objection is on the ground of interest. An interested witness cannot be compelled to swear. It is a privilege as to himself, which he has a right to claim; but if he chooses, he may swear against his own interest, but not for it.

The objection therefore, can only be a partial one as it respects the plaintiff. If he be interested in swearing for the person offering the testimony, he is not competent as to that.

Another witness was proceeding to state what was said at a trial before a justice of the peace; this was objected to, on the ground, that the record of that trial should be first shewn.

Per Curiam. It is not necessary to shew this record. When records, or evidence of a higher nature, are referred to incidentally, which have no effect upon, or connection with the point in dispute, it is not necessary to produce such testimony of a higher nature. If it were necessary to ascertain whether there was a trial, and the effect of the trial, it might be necessary to produce the record, if one existed. The object here is to shew what was said, and whether it were at a trial before a justice or elsewhere, is unimportant in this case. 
      
       1 John. 362, 340.
     