OPINION OF THE COURT — by the
IIo*. JOSHUA CHILD.'It is with no small degree of regret, that duty compels me to reverse the judgment of the court below, in this case, given in the hurry of business ’in the circuit; more particularly so, as nothing- appears to this court, to shew that substantial justice, has not been done by the verdict of the jury, and indeed this fact seems to have been conceded by the cousel ar-guendo for the plaintiff in error.
I am however thoroughly convinced, that the court erred in making the plaiutiff a witness without necessity, and admitting his own books 'as evidence in support of his demand, and am therefore of opinion that 'the verdict and judgment, however just, cannot be sustained by this court on "a wxit of error, upon legal principles, and that to do so would be too wide a departure from the settled practice of our courts, and a violation of established rules of decision, too inflexible to bend even to justice.
In reversing this judgment however, I am better satisfied with the result, here, as the decision is not final; upon the former trial,the verdict of the jury was just and right, but their finding was founded in part, upon •illegal evidence, and it is impossible for this court, to say what weight that testimony mighthave had upon the mind of the jury in determining upon their verdict.
The judgment below will therefore be reversed — cause remanded, <and a venire facias de novo awarded.