concurring. — I concur in the opinion of the Chief-Justice that the Circuit judge committed no reversible error in striking out the testimony of Alf. Nickles to the effect that the boy Seegars had not time to get back to the place where the difficulty occurred, after going for water.
Alf. Nickles was an old man — nearly eighty-three years old — so infirm that his testimony was taken by deposition at his home. The defendant was his son. The evidence shows him to have been interested in the case, and *52actuated by strong feelings of partiality. He had already stated that he did not see any part of the difficulty, and knew nothing of it from his own knowledge. In reply to the question “Did you hear the gun fire?” he answered, “Yes sir, I heard it. I heard a gun fire. I don’t know whether it was it or not.”
This evidence raises an inference which is not rebutted —that his opinion that Seegars had not had time to return to the scene of the difficulty, was formed largely, if not entirely, from what others had told him, and not from facts which he knew of his own knowledge.