
    
      M'MICKEN vs. FAIR.
    
    Appeal from the court of the third district.
    Awknranho 1r-'isfíí's agaihst his own interest ⅛ competent.
   Martin, J.,

delivered the opinion of the court. The defendant is sued on an allegation that he took possession of the estates of his parents, and is liable for their debts. The plaintiff to support the action, offered the defendant’s brother, who was objected to, and the objection sustained.

The plaintiff and appellant contends the court erred, because the decision of the suit could not affect the witness.

On the success of the plaintiff the defendant would have the recourse on the witness, which the plaintiff would have, if he failed. He is bound for his share of the debt, and the event of the suit determines only the party to whom he is to pay.

That, if the witness has any interest, it is averse to the plaintiff’s, who seeks to lessen the estates of his ancestors, ami reduce the distributive part he is entitled to. In such a case, this' court has said the witness is to be heard, 6 Martin, 258. 1 Johnson, 159.

The greater part of the plaintiff’s claim is grounded oa an account alleged to have been acknowledged arid signed by the mother of the defendant, and the witness. .

That, admitting that he has an interest, as to certain items, the articles of which he received himself, he could not have any in proving his mother’s signature at the foot of the account.

Although the witness be excluded as to the items of an account in which he is interested, he must be heard on the others. 4 Cranch, 82.

We have not been favored witlpany argument on the part of the defendant.

That of the plaintiff appears conclusive. The witness, we think, is a good one for the plaintiff; for if he have any interest, it is to defeat the claim. The judgment, if it may be given in evidence against him, must be so to his injury; it cannot protect him, if it be favorable to the plaintiff The defendant cannot object to a witness, whose interest it is that the plaintiff should fail.

It is therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that the case be remanded, with direction to tfc- . . ju«ge to admit the testimony; and it ’ordered that the defendant and appellee p& costs.

Preston for the plaintiff!  