
    *The City Council v. William Haywood.
    On an indictment, where a witness is entitled to a part of the penalty, he is a competent witness, if he releases his interest, 
    
    Where a witness has gone through his testimony, and it is then discovered that he is interested, he will he competent, if he release his interest; and he may then he re-examined.
    
      Interest, which goes to the competency of a witness, is a question to he determined by the Court, hut influence, which only affects the credibility, is a matter for the jury.
    This was an action brought before the City Recorder, John Bee Hoi,mes, Esq., in the City Court, to recover a penalty incurred by a breach of one of the by-laws of the city.
    The only witness called to establish the fact, was Mr. Levy, the deputy marshal. After he was sworn, and had given evidence, it was discovered that he was entitled to half the penalty.
    An objection was then made to his competency, and sustained. He offered, however, to release his interest; but the judge was of opinion that it was too late after he had given evidence.
    'A verdict was found for the defendant, and a motion was made for a new trial, on the ground that the Recorder was mistaken in the law, in refusing to permit the witness to release his interest, and then give evidence to the jury.
    
      
       Ede Van Evour ads. The State.
      
      
        An informer, unless saved by the statute, or from the necessity of the case, is not a competent witness.
      
      
        The Acts of 1784 and 1801, to prevent retailing without license, have always been regarded pari materia.
      In this case the defendant was indicted at Charleston, for retailing spirituous liquors without a license.
      The informer was ruled by the Circuit Court to he a competent witness, and his evidence went to the jury.
      A verdict was had for the State, and a motion was now submitted for a new trial, on the ground that the informer being entitled to a moiety of the penalty,, was not a competent witness.
      The opinion of the Court was delivered by Mr. Justice Hdser.
      The Acts of 1784 and 1801,1 Brev. Dig. 418, P. L. 340, and 2 Eaust, 401, 1 Brev. Dig. 82, have always been regarded as pari materia. In the last, the penalty is only reduced. It does not interfere in any other respect with the rights of the informer ; and of this opinion were all the j udges in the case of the State v. Luke Williams, 1 Nott & McCord, 26, although they differed on another point involved in that case.
      An informer, unless saved by the statute, or from the necessity of the case, „ rn *has always been held to be an incompetent witness ; Rex v. Tilley, 1 Strange, 316; Rex v. Robotham, 3 Burrows, 1473; 1 Saunders, 262; Phillips on Evid. 92.
      The motion is granted.
      
        Nott and Me Cord, for the motion. Stark, Solicitor, contra.
    
   The opinion of the Court was delivered by

Hott, J.

The rules of evidence appear to be reduced to something more like system, by modern decisions, and better understood than formerly.

At one time an opinion prevailed, that it was too late to object to the competency of a witness after he was sworn in chief. And it was not until the time of Lord Mansfield, that the line between that influence which shall only affect the credit of a witness, and interest which goes to his competency, was distinctly drawn. Walton v. Shelly, 1 T. R. 300.

*In the principal case, the release would have entirely removed the interest of the witness. It is true he would have been under L the influence of his testimony previously given ; but that was a question of credibility for the jury, and not of competency, for the Court to determine.

It does not necessarily follow, that because a witness has an interest in the event of a cause, that he will not tell the truth. And the readiness with which the witness in this case offered to release his interest, furnished pretty strong proof that he had not acted under its influence. He was under no necessity, either legal or moral, to execute such a release. And it is not to be presumed that a person would do a voluntary act which would reduce him to the necessity of committing perjury, without some motive.

I am of opinion, that the testimony .ought to have been received, and that a new trial, therefore, ought to be granted.

Bay, Colcock, Johnson, Huger and Richardson, JJ., concurred. 
      
       6 Strob. 89. This case is said (so far as concerns the informer’s right to a share of the penalty for retailing without license) to have been overruled by the Act of 1825, (9 Stat. 564,) and the case of the State v. Listerjette, 3 Hill, 257. See 2 Bail. 541; 1 N. & McC. 26.
     
      
       4 Stat. 608, l 3; 5 Stat. 399 ; Ante, 240, note.
     