Waters v. Burnet

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.