As Jerome was named in the writ and could not be taken, and was proved to be a party concerned in the trespass, he was an incompetent witness according to the old rule. (Bull. N. P. 286. Lloyd v. Williams, Cases temp. Hardw. 115.) But since the case of Bent v. Baker, and which has for many years been adopted by this court, as the proper rule, (Van Nuys v. Terhune, 3 Johns. Cases, 82.) the incompetency of a witness, on the ground of interest, must be confined to a legal fixed interest[*23] in the event of the suit. Jerome had no such interest, and the objection went only to his credit.

The verdict must be set aside, and a new trial awarded, with costs to abide the event.

New trial granted.