1 Port. 101 | Ala. | 1834
This was an action of trespass, brought by the defendant in error, Lowry, (who was a purchaser from one Townsend, who held by bill of sale from Cottrell,) against the plaintiffs in error, for forcibly taking a negro from the possession of Lowry.
The first error assigned, is the admission of Cottrell to testify in said cause, who was introduced by the plaintiff below. The witness was objected to on the ground of incompetency ; and the relation in which he stood to the parties was, (as was made to appear to the Court) as vendor of the negro to said Townsend, who sold to Lowry — and as defendant in sundry executions in favor ofPruit, by virtue of which, the defendant Martin had levied on the negro in question, and sold to Pruit. As a general proposition, N it must be admitted, that a vendor of property is directly interested in maintaining the title of such property, when it is brought into contest by action against his vendee : his liability over in case of a recovery, is a direct consequence. In a ease however, where the consequences would be the same to him, let the contest be decided in either way — as where he had .conveyed the same subject to both litigants ; an equipoise of interest would render him competent. So in the ordinary case of .a trial of the right of property, under our statute, where the property is levied on as his own after a sale of it, and his vendee is the claimant, here it might reasonably be supposed that he would be interested to subject the property of another to the payment of his debt, and so interested against the claimant, but his liability in such event to his vendee, the claimant, would bring about an equilibrium of interest, and leave him a competent witness. But here there was, as I conceive, an interest inclining the witness to the side of the plaintiff Lowry, and no conceivable interest to countervail the bias — for the
Let the judgment be reversed, and the cause remanded.