Trustees of Lansingburg v. Willard , 8 Johns. 428 ( 1811 )

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.,