
    Jones v. J. & W. Park.
    2. A vendar having sold a slave to two different purchasers, is a competent witness in an action between them for title to the slave, his interest being equally balanced.
    2 Though one party be indemnified by the vendor, he is still a competent witness; the objection goes to his credit
    3. In a suit between the two purchasers for the slave, an indemnity given to one, after his purchase by the. vendor, is not relevant testimony, and is therefore inadmissible.
    This was an action of detinue for a negro, brought on the 1st October, 1824, by J. and W. Park, as copartners, against Jesse Jones, in the Circuit Court of Franklin county. The general issue was pleaded, and at the October term, 1826, a verdict was found for the plaintiffs for the negro, or §500. his value, andj§150 damages for detention. By a bill of exceptions taken by the defendant, it appears that the negro belonged originally to one James M‘Culloch. The plaintiffs gave in evidence a covenant of hiring made by said M‘Culloch to the plaintiffs, in Knoxville, Tennessee, whfere the parties resided, whereby be promised to pay them five dollars per month for the hire of the negro, and to deliver him up to them on demand. They also proved the identity of the slave, value, demand and refusal, &c. and closed their case. The defendant then proved that on the 9th of March, 1S21, said M‘Culloch, in Tennessee,.made a deed of trust for four negroes, the one in controversy being one of them, to one W. Mynatt as trustee, to secure the payment of a note for $1336 45, of the same date, due by McCulloch to J. and W-. Park, payable six months after date. By this deed, McCulloch was to remain in possession of the negroes till default was made in the payment of the note. On the 11th June, 1822, the trustee, by the instructions of McCulloch, sold the four slaves absolutely to J. and W. Park for $1200, which sum was credited on the noté. He also proved that after the contract of hiring, M‘Culloch moved to this State with the negro, and had him here in possession about twelve months, when he sold him to Jones, the defendant. The defendant offered to introduce as a witness on his part, M‘Cul-loch, the same person who had hired the negro and sold him to Jones- The plaintiffs objected to his competency, which objection the Court sustained. The plaintiffs then offered as rebutting testimony, to shew that Jones bad notice of the plaintiffs’ claim, and that he was indemnified, a certain conditional bill of sale of furniture, &c. for the gum 0£ ^‘3io, dated 14th May, 1824, the condition of which was, that whereas M‘Culloch had sold the negro to Jones, and the title appeared to be in doubt, if said M‘Culloch should secure to Jones a good legal and equitable title to the negro, then to be void, but should he fail to secure the title, and said negro be recovered by due course of law from Jones, then to be in full force ; which, though objected to, the Court permitted to be read.
    The errors assigned by Jones, who brought the cause here, are, that the Court improperly rejected M‘Culloch as a witness for him, and that the conditional bill of sale of the furniture was suffered to be read to the jury as evidence.
    Kelly, Hutchinson and Majitin, for the plaintiffin error,
    contended that McCulloch, the vendor of the property, was competent to testify. As his interest was balanced, it made no difference to him to which party he was bound for the value of the property. 
       And that whether Jones had acquired any indemnity or not from M‘Culloch was not .material to the issue, and could not make his title better nor worse; it was, therefore, irrelevant and inadmissible.
    Hopicins, for the defendants.
    
      
      
         i Phillips’ Ev. M~s~s-
      
    
   By JUDGE GAYLE.

In the argument it was contended, that the defendant below had no right to have M‘CuIloch sworn as a witness, without stating the particular facts intended to be proved by him; for he was incompetent to prove some facts that were involved in the investigation, such as went to establish the validity or nullity of his own deed of sale. It seems to the Court, that the true question before the Court below was, whether M‘Culloch’s interest was so equally balanced between the parties as to remove the temptation to perjury, which the law presumes to exist whenever the witness is directly interested in the event of the suit. He had sold the slave to both plaintiffs and defendant, and was accountable to whichever might fail in the suit. No reason can be discovered why the objection could not as well be made by the one as the other of the parties. There was no legal inducement for the witness to incline to either side; and the entire equipoise of interest rendered bim as competent as if he had been a stranger to the suit. It is said, however, that the indtm-nity given to Jones, destroyed the indifference he might otherwise have felt, and made him directly interested in the success of the defendant below. The record shews that when the witness was offered, the indemnity was not known to the Court, and he must have been rejected without any reference to the objection it might have interposed. And even after the said indemnity was given in evidence, it does not appear that the said witness was offered. But if this could have weighed any thing on the mind of the Court, or if it had been insisted on as an objection to the witness, it was only a circumstance affecting his credit, and did not render him at all incompetent. He was left equally liable to both parties and to the same extent, though Jones might have enforced payment by means of the indemnity sooner than could have been done by the Parks.

As to the other assignment of .error, that the deed of indemnity was improperly admitted in evidence, the Court are of opinion that it was not pertinent to the issue, and could have had no tendency to prove any fact material in the cause. It could not shew that Jones had notice of the Parks’ title, for it was given long after MlCul-loch moved to this State, and after he had sold the slave to Jones. The only effect it could have had was to influence the jury to find in favor of the plaintiffs, on account of their want of a similar indemnity, which was wholly immaterial to the issue between the parties.

Judge White not sitting.

Reversed and remanded.  