
    Waters against Burnet.
    NEW-YORK,
    October 1817.
    In an action a-^defendant6in iatterh™ómpe1 ule*"offic&r; bis bting^gái'nstthe party caiimg
    IN ERROR, on certiorari to a justice’s court.
    The defendant in error, who was plaintiff in the court below,, brought an action on the case against the plaintiff in error, and declared against, him, as a constable, for the escape of one Bixby, execution. The defendant below moved for a nonsuit, on the grounc] that the action should have been debt, and not case; but the motion was over-ruled; and or! the trial, the defendant offered Bixby, as a witness to prove that the plaintiff had directed the defendant not to take Bixby to ’gaol, on the execution. The witness was objected to, and excluded by the justice, and a verdict was found for the plaintiff for the amount of the execution. ,
   Per Curiam.

The variance between the summons and the declaration would probably be considered matter of form», if that were the only objection to the prceedings; but we think that Bixby was improperly excluded. He was not interested in the event of this cause, nor could this judgment be given in evidence in any suit between the witness and the plaintiff below. His interest would rather seem to be against the defendant who called him; for, if the plaintiff recovered against the constable, the witness would be exonerated from any liability to the plaintiff; and, if the escape were voluntary, the constable could not ■ recover any thing from the witness. On this ground, therefore, the judgment must be reversed*

Judgment reversed.  