Hopkinson v. Town of Guildhall

’The opinion of the court was delivered by Kellogg, J. The only question, presented in this case for the consideration of the court, is as to the correctness of the decision ■ of the county court, in admitting the testimony of John H. Hop.kinson. The witness was an heir at law to the plaintiff’s intestate; [535] and, previous to his admission, he executed to the plaintiff a release of all his interest in the suit. It is, however, insisted, that he still remained interested, being liable, in the event of the plaintiff’s not succeeding in the suit, to contribute to her towards the costs incurred in the prosecution; — and we think this exception is well taken. The suit was prosecuted for the benefit of the heirs at law; and, in case of failure to recover, the heirs would all be liable to contribute to the costs incurred; and the release of the witness to the plaintiff did not discharge him from that liability. The witness was.incompetent and consequently the ruling of the court below manifestly erroneous; and for this cause the judgment of the county court must be reversed.