There is no portion of the practice which we regard more uniformly or better settled, than that the court may permit an appeal bond, a replevin bond, a bond for costs, etc., to be canceled and a new one executed,"to render a witness, who is a party to the bond, competent to testify. No possible injury can result to the parties, and it may become highly necessary to the attainment of justice, that the practice should obtain. The law will not permit the party, against whom the evidence is proposed to be given, to hold such an unjust advantage of his adversary, when public policy does not oppose. This question has been repeatedly before this court, and must be regarded as at rest. Kimmell v. Schwarts, Breese, 218; Amos v. Sinnett, 4 Scam. 418.
It is not perceived that, because Morey had given his note to Shepard and his partner, which he at the time agreed to pay out of the proceeds of the sale of the cattle, renders the witness incompetent. The note had been paid, canceled and given up, by the firm. And the fact that it was paid out of the price received on the sale of the cattle after they were replevied, makes no difference. The firm had received their money, and it was a matter of no interest to witness who succeeded, in the replevin suit. If the plaintiffs in error were successful, and defendant in error was unable to return the cattle, or pay their value, then Castle would have been individually liable as his surety to discharge the damages by reason of the wrongful replevying of the cattle. But it is not perceived in what manner the firm or witness would be liable. It could not be by virtue of the individual liability of his partner.
Plaintiffs offered Johnson Hisner as a witness, but the court excluded him from testifying. He testified on his voir dire, that he was one of the defendants in the execution under which the cattle in controversy had been seized. That he was the security of Follansbee, but after the rendition of the judgment he had been fully released. That he had the release, but not with him when he testified. It was objected, that the fact that he was a defendant in the execution rendered him incompetent, and that he could not show his restoration to competency except by producing the release. In the case of Clifton v. Reynolds, 1 Scam. 32, it was held, that the defendant in execution was a competent witness on a trial of the right of property. • But it was after-wards provided, by legislative enactment, that he should not be competent. After the passage of that law it was, however, held, in the case of Miller v. Dobson, 1 Gilm. 573, that a defendant in execution was a competent witness in a case of replevin. This, then, was no grounds for excluding this witness. But even if it had been, he, on his voir dire, proved his release from all liability under the judgment. This, under the case of Ault v. Rawson, 14 Ill. 485, was proper, so as to restore his competency.
The court below, therefore, erred in excluding this witness from testifying, and the judgment must be reversed, and the cause remanded.
Judgment reversed.