
    Elbridge G. Morrison & al. vs. Nathan Fowler.
    The vendor of goods may be a witness as well to defeat, as to sustain the sale, his interest being a balanced one in either case.
    In a suit by the vendee against the vendor of goods on his implied warranty of the title, it would not be a good defence to prove, that the plaintiff had ohtained a release from a subsequent purchaser from him; and therefore such release would not affect the competency of the vendor as a witness.
    Exceptions from the Middle District Court, Redington J„ presiding.
    Trespass for the taking of an ox, alleged to be the property of the plaintiffs, by one Kimball, a deputy of the defendant, formerly sheriff of the county, on a writ in favor of Strickland against Marsh, as the property of the latter. The taking of the ox from the possession of the plaintiffs by Kimball on a lawful precept against Marsh was admitted, and that Kimball was a deputy of the defendant.
    To prove their title, the plaintiffs called A. Z. Littlefield, who was objected to by the defendant, as interested. To prove the interest, Kimball having been released by the defendant, was called and testified that at the time of the attachment, one of the plaintiffs told him that they had purchased the ox of Littlefield &f Kerswell, who must make good the ox to them. Littlefield and Kerswell were released by the plaintiffs, and then admitted to testify. They stated that they originally signed a note for oxen, of which that in controversy was one, with Marsh to McClure; that afterwards Marsh agreed with them to pay the note and take the oxen, and that the note was paid by them, and the oxen taken into their possession ; and that they sold this to the plaintiffs. The defendant introduced evidence tending to contradict Littlefield fy Kerswell, and offered Marsh as a witness. He was objected to as interested, and excluded by the Judge. The verdict was for the plaintiffs, and the defendant filed exceptions.
    
      Tenney, for the defendant,
    contended, that Marsh was a competent witness, and should not have been excluded. It is but the common case of a balanced interest, being liable to Strickland, the attaching creditor, or to Littlefield Kerswell, the purchasers of him. 2 Mass. R. 106 ; ib. 520 ; 13 Mass. R. 199 ; 17 Mass. R. 197; 4 Johns. R. 126 ; 3 Wend. 386 ; 2 East, 458; 7 T. R. 480; 13 East, 177 ; 2 Caines, 77; 3 Fairf. 371; 21 Pick. 70.
    The release of the plaintiffs to Littlefield fy Kerswell could make no difference. Marsh would be equally liable to them, whether they were obliged to pay to the plaintiffs, or could keep the amount themselves.
    
      Leavitt, for the plaintiffs,
    contended, that Marsh was directly interested. If the defendants prevail, so much of the debt of Marsh to the creditor will be paid, and the plaintiffs can have no claim on him. The release to Littlefield Kerswell destroys the right of action of the plaintiffs against them and against Marsh. Rice v. Austiú, 17 Mass. R. 197; Lot hr op v. Muzzy, 5 Oreenl. 450.
   'The opinion of the Court was drawn up by

Shepley J.

If Marsh testified so as to defeat the title of Littlefield & Kerswell, who derived their title from him, 'he would be liable to them for the value. Nichols v. Patten, ante p. 231. And' if his testimony supported it, his debt to Strickland would remain unpaid. ' His interest was balanced, and he should have been admitted, .unless the release from the plaintiffs to Littlefield & Kerswell relieved him from his responsibility to them. When a covenant runs with the land a release from the owner to his grantor may operateia discharge to those preceding him. But in contracts for the sale of goods, each seller „ being responsible only to his purchaser, the relations between them are not affected by any con-.tracts between subsequent parties. In a suit by Littlefield & Kerswell v. Marsh, on his implied warranty of the title, it would not be a good defence to prove, that they had obtained a release from a subsequent purchaser from them.

Exceptions sustained and nexo trial granted.  