
    Kennedy, &c. vs. Barnett.
    
      October 14th.
    A wicnefs in-be examined3when called by that j*ny to she witnefs is appofcd, '
   OPINION of the Court, by

Judge Trimble.-

Ort the trial of this cause in the inferior court, the defendants offered Andrew Barnett as a witness for them % who was objected to by the plaintiff as incompetent, Upon the witness being sworn on the voire dire, he stated, that in a conversation between him and the plaintiff, before the commencement of the suit, he told the plaintiff that if he would bring the suit, and was cast therein, he (the witness) would pay half the costs ; that he conceived himself in honor bound to pay part of the costs if the plaintiff should be cast, and submitted his interest to the court. The court sustained the objection, and set aside the witness ; to which opinion of the court the defendants excepted: and the propriety of that opinion is the only question made in this court.

We are clearly of opinion, both upon principle and authority, that the decision of the inferior court is erroneous.

The law regards the interest of a witness as an objection to his competency, because of the danger of his being tempted to swerve from the truth in favor of the party whose interest is in unison with his own, to the prejudice of the adverse party, to whom his interest is opposed. But when he is called as a witness by that party to whom his interest is opposed, the reason of the law wholly fails ; and “ Cessante ratione cessat et lex.” The rule of evidence was adopted for the safety and protection of the party whose interest is opposed to that of the witness, and not for the protection of that party in whose favor the interest of the witness might tempt him to depose falsely.

It hath been adjudged that “alegatee is a good witness against a xuill, for he swears against his own interest, which he parts with by impeaching the will,” 2 Salk. 691, Oxenden vs. Penrice. So also it hath been decided that a witness, excepted to by one party and set aside, may afterwards be called by that party and examined on his side, 1 Stra. 480. These cases seem to be conclusive on the point.

Judgment reversed, and the verdict of the jury also set aside ; and the cause remanded to the-circuit court, with directions to place the cause again on the issue Jockett for trial, and to permit, upon the trial, the said Andrew Barnett, if offered by the defendants, to be sworn as a witness for them.  