
    Federal Court. Nashville.
    1812.
    VINING’S LESSEE v. WOOTEN.
    v >- Ejectment. )
    Qu., whether a witness can be made incompetent by proving that he had said he was to get a part of the land in suit, if it were recovered. Todd, J. thought the evidence offered was hearsay; that you may prove a witness incompetent from acts and facts, not from what he said. M’Nairy, J., dubitatur. [See McAllister u. Williams, 1 Tenn. 107.]
    The plaintiff produced as a witness one William Chism. The counsel for the defendant objected that he was incompetent, and produced a witness who proved that he had heard Chism say if the plaintiffs gained the land he would get six hundred and forty acres of it.
    It was objected by Dickinson, Haywood, and Gooke, for the plaintiffs,
    that the interest could not be established from anything he had been heard to say on the subject.
   M per Todd, J.

His interest cannot be proved in this way. It would be nothing more than hearsay evidence, which shall not affect the plaintiff. You may prove him incompetent from acts, or from facts that are capable of being seen and judged of; but you cannot show his interest by anything he has said. It might be that he would say a thing of that kind barely to prevent a party from having the benefit of his testimony.

M’NaiRY, J.

said he was not perfectly satisfied with the opinion of his brother Todd. The objection to the introduction of the witness, upon a division of the Court, would fail; it was, therefore, unnecessary for him to give any opinion upon the subject; hut he said it would seem strange, at first view, that if a witness should say that he was to have $500 of the sum to be recovered by the plaintiff, this should not render him incompetent. The acts and facts spoken of may exist only in the knowledge of ¿he witness and the party.

Whiteside; for defendant.  