— Ill this case, the action was tres* pass against the defendants, for forcibly taking from" the possession of the plaintiff, and carrying away a wagon, which belonged to him. The defendants proved, that an attachment had been le vieron the wagon, as the property of one Surber, whose Reposition the plaintiff offered as evidence that the property was his, in virtue of a sale of the wagon to him, which the witness bad made. The Court rejected the evidence, on the ground that the witness was incompetent.
If the property had been sold under the attachment, and the proceeds applied towards the satisfaction of a final judgment in the suit against Surber, he would have been an incompetent witness for the plaintiff. The proceeds of the sale having been so applied, would give him a right to a credit for the amount on the judgment which would not be affected by the recovery of the plaintiff. In such a case, he would be interested that the'plaintiff should recover. Such a result Would not make him liable as vendor to the plaintiff, as a judgment for the defendants in the action might and would leave his right to the credit for the proceeds unimpaired.
The only ground disclosed by the record, to shew the incompetency of the witness, is, that the property had been levied on as his.- If the property had not been sold, and the proceeds applied to a judgment against him in the suit by attachment, he was a competent witness when his deposition was offered. In such a case, his interest would be as great on one side as upon the other, as he would have no right, after the recovery of the plaintiff, to have a
The Court erred in rejecting the testimony.
Let the judgment he reversed, and the cause re--manded.-
Porters R.^ist ed.
Rep.637;i i98.w'