The witness is entitled to a distributive share of the estate, and unless it is admitted to be insolvent, the recovery would put money in his pocket; he is inadmissible.

By the Court. This is a court of dernier resort, and we are in the constant habit, where justice requires it, to relax our rules, where mistakes have occurred, in order to avoid new trials. You can give the evidence.

*344By the Court. The witness is clearly inadmissible.

The plaintiff having no other evidence, then submitted to a non suit, and the jury were discharged.