
    Morton vs. Beall’s Adm’r.
    June, 1828.
    The surety in a replevin bond is not a competent witness for the plaintiff, in the action of replevin.
    Sf it is discovered during any part of a trial, that a witness is interested, his evidence shall be struck out.
    Where the interest of a witness is discovered after his examination, it is the duty of the court to direct the jury to discard his evidence, although both parties may have informed the court, that the testimony was closed, and the witnesses had been discharged — the party making the objection having omitted to disclose it at an earlier period, with no intention of ensnaring his adversary.
    Appeal from Sciint-Mary’s County Court. Action of replevin for certain negro slaves, brought in the lifetime of the appellee’s intestate, against the appellant. The death of the then plaintiff was suggested, and the appellee, as his administrator, was made plaintiff. The sureties in the replevin bond entered into by the plaintiff before the issuing the writ of replevin, were George G. Jlshcom and John C. Jlshcom. The, defendant pleaded property in himself, to which issue was joined.
    At the trial the plaintiff produced and swore John C. Jlsh<aom. who gave important testimony to the jury on the issue joined. Other witnesses were then examined by the plaintiff and defendant, when the hour for adjourning the court arrived. When the court were about to adjourn, they gave notice to the counsel on both sides, that they would permit no other testimony to be. examined in the case the next day; if they had any other they* must then examine it; and the counsel answered they had none. The court then adjourned. At the meeting of the court, the next morning, the case was taken up for trial, when the defendant, by his counsel, prayed the court to instruct the jury, that they would discard from their consideration, in making up their verdict in this case, the testimony of the said John C. Jlshcom, it having been discovered, since the said witness was examined, that he was a surety in the replevin bond given in this ease by the plaintiff, and, therefore, incompetent. Which fact, was admitted. The counsel for the plaintiff objected to the instruction to the jury as prayed for. And the court told the counsel for the defendant, that if he would state that he had not, yesterday known the fact, that the witness was surety in the replevin bond, that then they would now discard his testimony, otherwise they would not. The counsel answered that they had discovered it when they were taking up the papers at the time of the adjournment of the court on yesterday. The Court, [A'Aphen, Ch. J. and Plater, A. J. ] then refused to give the said instruction, alleging that the application was too late; and instructed the jury to consider the testimony of the said John C. Jlshcom as competent — the witnesses all having been discharged the preceding day. The defendant excepted; and the verdict and judgment being for the plaintiff, the defendant appealed to this court.
    
      The cause was argued before Buchanan, Ch. J. and Earle, Archer, and Dorset, J.
    
      Stonestreet, for the Appellant,
    contended, that the court below erred in refusing to reject the testimony of John C. Ashcom, who was a surety in the replevin bond.
    
      C. Dorsey, for the Appellee,
    referred to Curren v Connery, 5 Binny’s Rep. 488.
    
      Stonestreet, in reply,
    cited Allegre v The Maryland Insurance Company, 6 Harr. & Johns. 413, 415.
   Earle, J.

delivered the opinion of the Court. We are of opinion that the judgment in this case ought to be reversed, and a procedendo awarded.

The court clearly erred in refusing to direct the jury to discard the testimony of John C. Jlshcom, who was manifestly an incompetent witness in the cause. The rule now is, if it is discovered, during any part of the trial, that a witness is interested’, his evidence shall be struck out. The reason assigned for not striking out the evidence of John C. Jlshcom, appears to us to be an insufficient one. No witness in the cause gave the im~, portant testimony delivered by John C. Jlshcom, and it is presumable none of the witnesses were in possession of the facts narrated by him. If then new witnesses were to be sought for to supply his place, it could have been as well done the second day of the trial, as on the first, and the plaintiff’s predicament was in no way changed by the adjournment. Neither does there appear any thing like a disposition in the defendant, tc> ensnare his adversary, by disregarding the promise made by him, to produce no new testimony at the adjourned meeting of the court. He offered no new evidence the next day, and only objected to testimony laid before the jury by the plaintiff, on a ground which came to his knowledge, when the jury were for the day discharged.

JUDGMENT REVERSED, AND PROCEDENDO ORDERED»  