
    Ellison and Another v. Johnson, for the Use of Hobbs.
    
      Thursday, July 18.
    A person for whose use a suit is brought being liable, by statute, for costs if the suit fail, is not a competent witness for the plaintiff.
    Nor can he be rendered competent in such case by his release of his interest in the cause of action to the plaintiff.
    ERROR to the La Grange Circuit Court.
   Sullivan, J.

— Debt on a promissory note by Johnson, for the use of J. T. Hobbs, against the plaintiffs in error. The suit was commenced before a justice of the peace. The cause was tried upon the general issue, and a special plea the character of which is not disclosed by the record. The Circuit Court gave judgment for the plaintiff On the trial, the plaintiff offered as a witness J. T. Hobbs, the person for whose use the suit was brought, to prove that certain payments that had been sworn to by a former witness had not been made. The defendants objected. Hobbs stated on his voire dire that he had no interest in the suit, and that it was prosecuted for the benefit of one Chapman. He also wrote and tendered to Johnson a release of all claim to the note on which the suit was founded, and to the proceeds thereof. The defendants still objected to the competency of Hobbs as a witness, but the Court overruled the objection and he was sworn accordingly.

H. Cooper, for the plaintiffs.

J. B. Howe, for the defendant.

The Court erred in admitting Hobbs as a witness. By the terms of the statute, he was liable to a judgment for costs if the plaintiff failed in the suit. R. S. 1838, p. 458, sec^ The release tendered by the witness to Johnson could not remove that liability.

Per Curiam.

— The judgment is reversed at the costs of Hobbs. Cause remanded, &c.  