
    The Trustees of Lansingburg against Willard.
    Where the wit-his* vÉ^^dire that he is inteof the party cal-7 that interesáis soeircurastanced that he cannot be released, the witness ought' not to be sworn, though,m strict ness,he is not interested; but if his supposed!»theparty filing to'be admitted?**
    IN error, on certiorari, from a justice’s court.
    The plaintiffs in error brought an action, before the justice, against the defendant, to recover certaih penalties incurre4 by violating a by-law of the village of Lansinífburi?, in releasing and rescuing certain geese from the pound, and from persons driving them to pound# The defendant pleaded not guilty, and there was a . • , . trial by jury,
    tiffs, and being challenged, on his voire dire, answered- ' ° 0 that he was interested in the event of the cause; and, , e e to explain how he was interested, said, that a long timfc before this suit, he had agreed with his brother, the de« fondant, to support their mother,, should she ever come to want: that the geese released belonged to her, from which circumstance, he considered himself interested in the event of the suit. Reuben Willard was called as a witness by the plain-
    The plaintiffs urged that he might be sworn; on the ground that he was interested against them, if at alL But the justice rejected the witness; and the jury fouittf a verdict for the defendant, on which the justice gave judgment.
   Per Curiam.

There existed no possible interest in ■ this case. It was merely ideal, if not an artifice to avoid giving evidence. The supposed interest was against the party insisting on the examination of the witness.

Peake (156.) seems to think that an interest existing merely in the imagination of a witness, is not sufficient to reject him. But there are several cases (1 Str. 129. 12 Vin. 11. pl. 28.) in which it has been held, that if a witness apprehends himself to be interested, though stricto jure he is not, he cannot be sworn.

To prevent fraud and trick, the following appears to be a salutary distinction. If a witness be called, and declares himself interested on the side of the party who calls hiin, and his interest be so circumstanced, that he cannot be released by the party calling him, in such' ease he ought not to be sworn, though in strictness he is not interested; but if his ideal interest be against the party calling him, and will run the risk of the bias on the mind of the witness, then he ought to be sworn.

We are at liberty to establish this rule without innovating on the law. The witness, in the present case, ought to have been admitted, and the judgment, on that ground, is reversed.

Judgment reversed.,  