
    DAY vs. GREEN.
    
      May 30th.
    
    a perfon of-feted as a wit-ñ'dir'eíT&'ceñ' ta¡n ¡ntereftíñ the event of the render ,nc'lln‘:e'
    in cafes where w’Ul nefs is intend ted or not, it is 6e,ierally better jeatóngotothe credibility only
    
      Abraham vs. 4 Rv* Hen. & Mun. 1 S4>
    GREEN brought suit against Day, for not perform-jng some carpenter’s work in a workman-like manner, Ori the trial Day offered his brother, Rawley Day, as a witness. He was objected to by Green, as being in-íerested. Witnesses were introduced who proyed that after the defendant had undertaken the work, he employed Rawley Day to assist him, and agreed that Raw-Jey should be paid out of what he was to receive of Green, in proportion to the work, he did ; and that after the work was done, the brothers settled, and passed a receipt. The witpess offered to swear he was not interested in the event of the suit. But the inferior court decided he was not a competent witness.
    A verdict and judgment being entered for the plaintiff, Day brought his writ of error. The following was
   The Opinion oe the Court. — The third error assigned, is, that the circuit court erred ⅛ refusing the testimony of Rawley Day upon the trial. This objection seems to this court to be well founded.

it doeq not appear from the bill of exceptions, that he had any direct or certain interest in the event of the suit, or that the question to be tried between the plaintiff apd defendant vyould certainly affect,his interest, if decided, either way. The witness was not an qriginal joint undertaker of the work, and therefore in no way responsible to the plaintiff, nor could he be responsible as a partner to the defendant. If responsible to the defendant at, all, it would be only on, the contract between the plaintiff and the witness as his hireling.

The bill of exceptions shews too th;\t the defendant and witness had settled for the work done by the witness, and that a receipt had passe,d for it.

The witness haying done part of the work, no doubt, would produce some bias on his mind in favor of the defendant; but that would oply go to , his credibility, and< not to his competency. And if there be a bare pos-f, or even a remote probability, of some indirect interest, the objection can only be considered in the same! light. In cases where it is doubtful whether the witness is interested or not, it is generally better to let the objection go to the credibility only. A witness should not be excluded altogether, unless his interest certainly appears.

This court is therefore of opinion, that the circuit court erred in refusing to permit Rawley Day ta. be sworn as a witness.-Judgment reversed. 
      
       See Wright vs. Nichols, fall term 1808, as to objections to the. compe tency of a witnefs.
     