
    [Philadelphia,
    December 26, 1827.]
    RUSH against FLICKWIRE.
    IN ERROR.
    In replevin by R., the defendant avowed the taking in a house occupied by N,, for rent due by N. to the defendant: the plaintiff replied no rent in arrear. Held, that N. was not a witness for the plaintiff, being liable to the plaintiff for the costs of suit in addition to the amount of rent recovered.
    Writ of error to the District Court for the city and county of Philadelphia.
    
    
      Replevin by Mary Rush, the plaintiff below and plaintiff in errpr, to try the validity of a distress made by the defendant for rent alleged to be due to the defendant,- from a certain John Nesbit, not a party to’ the suit The defendant avowed the taking on the premises occupied by Nesbit, for rent in arrear from Nesbit: the plaintiff replied no rent in arrear; and, on (he trial, Nesbit was offered by the plaintiff as a witness and rejected, and exception taken. The plaintiff then offered to read in evidence' the deposition of Nesbit, taken on a commission issued,to the city of Lancaster, by consent of parties, and given in evidence by the, plaintiff, with the consent of the defendant, on the argument of a rúle to show cause why a new trial should not be granted in' this ease. The deposition was objected to by the defendant, and rejected by the court, who sealed another bill of exceptions.
    The plaintiff assigned'as errors, ■
    1. That John Nesbit was a competent witness.
    
      2. That his examination on the commission was evidence.
    
      ¡Randall, for the plaintiff in error.
    
      T. Sergeant, contia.'■
    
   The opinion of tb6 court was delivered by

Gibson, C. J.

ffhe witness would undoubtedly be. liable to the plaintiff in the event of the proceeds of her goods being applied to the payment of the rent; or, in the alternative of the contrary event, he would remain liable to the landlord on his covenant. < So far his interest-was balanced. But, in favour of the plaintiff, he would be exposed to án additional demand for the costs incurred; so that in this respect it would be less expensive for him to be reached directly than circuitously, it is, however, said, the replication of no rent in arrear was intended for the plaintiff ’s own benefit, on the supposition that the landlord was a wrong-doer: consequently that the issue involved an inquiry with which the witness had no' concern; so that he could,in rio event-be burdened with the costs. But the foundation of the argument fails. The tenant is bound to defend the rights of one whose property has-been dis-trained only in consequence of his having been his guest; and where he refuses to do so, the owner defends on the tenant’s responsibility. And he is bound to contest every inch-of the ground, for a voluntary payment would be at his own risk;'and bad if there were no rent in arrear. The defence was not only necessary to the plaintiff’s safety; but it was manifestly the interest of the witness to put the landlord to proof of the facts -set forth in the avow-> •ry; and, as the witness would, eventually be-'liable for the costs, he had a certain- and a direct.interest in preventing a recovery.

Judgment afii'rmed.  