By the Court. delivering the opinion.

The only question in this case is, whether Sampson S. Foy was disqualified from testifying as a witness in this case, on account of his interest. For, notwithstanding the promise to pay, which was proven by Joseph Carson, may have been sufficient to entitle the plaintiff to recover, independent of the testimony of Foy, still, as a new trial was moved, if illegal testimony was admitted against the defendant, the Court is bound to remand the case for a re-hearing.

And it is true, that Foy says he was interested, but when he comes to disclose the nature of his interest, it turns out that he was mistaken. For he swears expressly, that if the (money is not collected out of Stallings, that Robert Carson is to pay him. And it is not proven or pretended, that Robert Carson is not solvent. We hold, therefore, that Foy was a competent witness; and it is not denied but that if he was, his testimony took the case out of the statute of limitations.

Judgment affirmed.