
    Tyler v. Scovel.
    Plaintiff admitted to testify in an action of trespass, where his depositions were ruled out.
    Action of trespass for cutting of trees, etc. on the statute. Plea - — -Not guilty. Issue to the jury.
    Certain depositions were objected to and excluded, because they were taken, more than two hours after the time set in the notification, and the defendant gone, who had been waiting .near two hours at the place of caption, and neither the. plaintiff nor any of the witnesses appeared whilst he stayed.
    
      The plaintiff thus deprived, of his evidence, moved that he might he admitted a witness to prove the trespass, according to statute. By the court he was admitted.
   Adams and Root, JJ.,

dissented. The admission of a party in interest to testify, is allowable upon the ground of necessity only to prevent a failure of justice. The statute admits the plaintiff to his oath in cases of trespass dona privately, where he is not able to produce any other evidence thereof than to render it highly probable — but never intended to let in the parties to testify, where there was other proof within the knowledge and power of the plaintiff, and he neglected to produce them, or was deprived of the benefit of them by his own fault.  