Page:United States Reports, Volume 1.djvu/321

310  

1788.

NDEBITATUS ASSUMPSIT for goods, to wit, 16 Hogfheads of Rum, fold and delivered.–The Plaintiff by his books, and oath of his Clerk, proved the fale to the Defendant.

The Defendants gave in evidence, that a certain George Henry was two thirds owner of the cargo of which this Rum was a part ; and, in order to prove that the Rum was purchafed of George Henry,  that he had made a charge in Henry's books, by the direction of Henry,  of the fale of the Rum to the Defendants.

To this, it was objected, that the books of Henry fhould be produced to fhew the entry ; and that, otherwife, the evidence of the Clerk to the contents of the books ought not to be admitted.

And of this opinion was ; but, at the requeft of the counfel for the Defendants, they referved the point. 

EVY exhibited an account of expences in the execution of a Commiffion, which had iffued for the Plaintiff, ex parte, and moved that they might be allowed in the cofts. Befides the charges for fwearing the witneffes, and for their attendance on the Commiffioners, there were charges for agency, and for the expences of travelling to collect the teftimony.

allowed the charges for fwearing the witneffes, and their attendance ; but rejected thofe for agency and traveling. 

RESPASS ''vi et armis. Capias'' returnable to this Term. Howell moved to quafh the writ, the Defendant being a Freeholder. Millegan objected that this was a cafe excepted by the act ; a ƒine being due to the Commonwealth, upon the Judgment capiatur pro ƒine, in actions vi et armis.

But, by SHIPPEN, Preʃident.– The practice has been long fettled under this act. Unlefs it is a fuit on a recognizance, or for a fine actually due to the State, we cannot take up a mere fictition, to defeat a pofitive privilege.

The writ quafhed. SUPREME