The opinion
Campbell, J.,
dissenting. I think the court below erred in this case in ruling on the testimony. "Warren Thorp was asked, “ "Whose horse was it you sold to Martin Gross ? ” The court ruled out this question on the ground that the .suit against Bachelder and Brown was really defended by Thorp, and that the fact was one within the knowledge of Mrs. Thorp.
This last assumption was one which the court had no right to make. It took for granted a matter which was at least for the jury and not for the court to determine. The ■administrator had not on the opening shown that the note had belonged to his intestate. All of the evidence concerning the consideration came from the defence — who claimed she was a stranger to the transaction. To assume that she was so concerned as to make it certain she must have had knowledge on the subject which was protected against such ■a question as that put to Thorp was to assume what was not admitted and was at any rate a mooted point.
I am also of opinion that the court had no right to treat Thorp as the opposite party. The statute only excludes ■“ the opposite party.” The utmost that could be claimed here is that Thorp had an opposing interest. Such an interest would have excluded him under the ancient common-law rules, but when objections on the ground of interest were abolished, it was never held, so far as I have discovered, that the possession or claim of such an interest made such a person a party. In McBride v. Cicotte 4 Mich. 479 , this *372 distinction is I think clearly recognized. I do not think we' can properly regard any one as an opposite party whose position is not the same in its nature as that of the record parties. Now Gross and Bachelder were sued as responsible-makers of the note. Thorp on the other hand claimed to be-its owner and might have been made defendant in an inter-pleader suit on their behalf. His interests as to them were; adverse and not identical.