The opinion of the Court was by
Shepley J.The defendant is surety, and will be entitled upon payment to call, upon the witness to repay to him the amount thus paid. , The -witness is therefore interested in. the event of the suit'. Whether a witness is incompetent by reason of interest is a preliminary question to be decided - by the Court before he can be admitted to testify.'
When the interest is apparent and it is proposed to discharge it by a release, the Court must judge of its sufficiency. In this case ho release i's produced, and the Court cannot decide upon it. - The witness cannot be permitted to do it, nor can he be allowed to testify to any fact in the case before the Court has decided, that h'e is competent. To decide the witness to be competent would .deprive the Court of the power of performing its appropriate duty and devolve it-uppn the witness.
Defendant defaulted.