delivered the opinion of the Court. On the trial of this cause, the Court below ordered Buchanan and Swezey, two of the defendants, to be dismissed, because no proof had been adduced to charge them. The remaining defendants offered one of the defendants so dismissed as a witness. The plaintiff objected; and the witness was sworn on his voire dire', and disclosed a certain interest in the event of the suit: whereupon the Court ordered the defendants before dismissed to be reinstated; refused to allow the defendant’s counsel to cross-examine the witness on his voire dire as to his interest; and decided "that he was an incompetent witness.
Without considering how far the Court had power to reinstate thé defendants after they had once been dismissed, we think the refusal of the Court to allow the defendant to cross-examine the witness as to his interest was clearly erroneous. The act concerning proceedings in civil cases provides, that “a party may be sworn on behalf of his co-plaintiff or co-defendant, but the examination so taken shall not be used on behalf of the party thus examined.” The defendants had a right, after the competency of their witness was attacked on the score of interest, to cross-examine him as to that interest, and to have the benefit of his testimony, if his interest was divisible from that of his co-defendants. The inference of the Court below, that the witness was incompetent because he might thereafter become liable for contribution, was incorrect, as it might have been explained by . further examination.
Judgment reversed; and new trial ordered.