
    Jacobson against Fountain and others.
    in an action of tresspass brought against cerinhabitants^ Staten Island, for building fishing hut", and fishing on lands claimed bythe plaintiff, one of the mhabitants was offered as a half <ff the defendants, to prove a com* mon right in all the inhabitants of the island, to the fishery in question, and it was held that he was incompetent on the ground of in-lease offered by the witness wasl-efused*'^ and a release to another for the use of the inhabitants, ex-ccpt himself, but it was held that such a release was inoperative, and could not remove the objection of interest. One of the inhabitants was held to be a competent witness for the plaintiff in the same cause.
    
      This was an action of trespass. The cause was tried at the Richmond Circuit, the first day of June, 1804,'be-fore Justice Livingston. o
    The declaration contained two counts. The defen- . . dants pleaded the general issue, and gave notice, that they should give in evidence under that plea, 1st. A patent frolli Queen Anne to Lancaster Symcs, dated the 27th ^ ^ October, 1708, for all the vacant and unappropriated lands upon Staten-Island, together with the meadows, marshes, fishing, fowling, &c. &c. 2d. A patent from William and Mary, to Thomas Carhart, dated the 16tlf April, 1692, for one hundred and sixty-five acres of land, on the S. side of the Island, bounded, &c.andon thesoutheast side by the Bay. 3d. A deed from James Smith to the defendants and others, dated the 22d March, 1771. 4th. A. deed from Fountain and II. Harrison, to the inhabitants of Staten-Island, and their successors, of then-interests in two certain .fisheries, opposite the land , of John Jacobson, dated the 12th April, 1802. 5th. A return of a certain road running from the high road, at the house of Isaac Johnson, and so along several places to Sand-Bay, registered the 11th October, 1708. And 6th. That the defendants would insist and give in evidence that the locus in quo was, and had been for sixty years past used by the inhabitants of Siaten Island as a free and common fishery; and that it had for that time been a public road and landing place for the public.
    On the trial, one M‘Clean, a witness for the plaintiff, testified, that he had lived on and near the locus in quo, for 17 or 18 years; that it consists of a beach' adjoining Hudson-River, near the Harrows. The premises in question, including the beach, and the right of fishing, were hired by him about 16 or 17 years ago, of C. Vandewinter, and A. Jacobson, through whom the plaintiff derived title. All who fished there paid a consideration to M‘ Clean, for the privilege of fishing and drawing their seines, during thirteen years; and two of the defendants did the same. The first lease to 31‘Clean was for three years, and the second for the residue of the time he had occupied. During the last three years he hired theupland of the plaintiff, but not the beach, or a right in the fishing. By an agreement with the plaintiff, he was to pay to him one fourth of the fish caught for the privilege of fishing. Four or five years ago the plaintiff built a house under the bank, on the road near the bank, which M‘,Clean occupied as a tavern ; and before 1802, the plaintiff had put up advertisements, foi-bidding persons to fish there without license. In 1802 and 1803, the defendants built fishing huts on the premises above high-water mark, and fished there during the season. This witness was objected to on the ground of interest, but the objection was overruled by the judge.
    The defendants then offered the patent under which the plaintiff claimed, dated in 1691, to show that its boundaries did not include the locus in quo, which was admitted and read in evidence. The jury had a view of the premises. The plaintiff then produced in evidence a deed from Catharine Vandewinter and Anne Jacobson, dated the 28th August, 1799, by which the premises, as far as low-water mark, were conveyed to him. A motion was then made by the defendants’ counsel for a non-suit, which the Judge overruled. The defendants then produced the record of a road laid out in 1707, which they contended lay between the premises granted by the patent, and the water. They then claimed a right to fish on the premises, in common with all the inhabitants of Staten Island, and they offered one Anoto, .as a witness^ to prove that the locus in quo liad been for, many years used in common as a fishery by the inhabitants of the island; and that the road, as laid out in 1707, had been used as a common highway, without interruption, time out of mind. It was objected that the witness, being an inhabitant of the island, was incompetent, on the ground of interest, and he was rejected by the judge. The witness then offered to the plaintiff a release of all his right, which the plaintiff refused to accept. He then offered a release to an inhabitant ofthe island, for the use of all the others, except himself. But the judge was of opinion that he was still an incompetent witness. Another witness for the defendants testified, that many persons had fished indiscriminately on the premises, daring the American war, and since, and that there was a road along the. bank. The plaintiff further proved that the fishery had been assessed as the property of the Vandewinters, who paid taxes for it. One Gafritson, an inhabitant ofthe island, was offered as a witness, and his release was tendered; but the judge rejected him as incompetent. An agreement, dated 6th April, 1787, and another in 1795, signed by several persons, acknowledging the right of the plaintiff to the fishery, and agreeing to pay him for the privilege of fishing on the premises, were read in evidence on the part of the plaintiff. The judge charged the jury, that they ought to find for the plaintiff, and that in assessing the damages, they should take into consideration, the loss the plaintiff sustained in consequence of the interference of the defendants in taking the fish. The jury accordingly found a verdict for the plaintiff, for four hundred dollars damages.
    A motion was made, on the part of the defendants, to set aside the verdict, and for a new tria].
    
      Hiker, for the defendants.
    1. M'Clean, by his lease from the plaintiff, was entitled to a portion of the fish caught, and was, therefore, so far interested as to render him an incompetent witness. If he had not a direct interest in this cause, yet he would be benefitted by the event. If a witness claim under the same title, or under the same right as the party, or if the decision of the cause may prevent a suit against him, he cannot be a witness. “2. To entitle the plaintiff to recover, it was necessary to Show an exclusive possession. M* Clean's evidence goes to prove a possession in common with others; and tenants in common must join in trespass. 3. But the most important point relates to the competency of Anoiu and Gar-ritson, who were offered as witnesses and rejected. There have been a great variety of opinions, and some confusion of cases on this subject. The settled opinion in England seems to be, that no objection can be made to the competency of a witness, on the ground of interest, unless he be directly interested in the event of the suit, or can avail himself of the verdict in the cause on some future occasion, in support of his interest. !- The witnesses had no direct interest in the cause, nor could the verdict be given in evidence, in an action brought by them as tenants in common. There is a difference between a witness, an inhabitant of a town, being 'qalled to support a public right, which does not affect his particular interest, and where it concerns his private interest. When a witness is competent to answer the question put to him, he cannot be rejected altogether.
      Anow, was ■a competent witness to prove that the locus in quo was a highway. In many cases, a witness who is interested may be received from necessity. The inhabitants of the-town are the only persons who can prove a highway. Again, if the party who tenders a witness, does all that is in his power to get rid of any objection to his testimony, such witness ought to be received. 4. There was an ambiguity in the patent of 1691, and the construction of it, as to the true bounds, ought to have.been left to the jury. 5. The judge’s charge to the jury was incorrect. The plaintiff was not entitled to damages for the fish which were not caught within the premises ; still if they became his property when brought upon his land, he should have brought his action de bonis aspor tails, for carrying them away, otherwise he cannot be allowed to go into evidence of the taking of goods not mentioned in the declaration.
    
    
      Colden, contra.
    1. Whether M’Cleari^was to be bencfitted or not depended on his taking fish; but, as an inhabitant of the island, he was interested in establishing a free fishery against the right claimed by the defendant. An interest so small, if opposed to the party in whose favor he is produced, would not render the witnsss incompetent. 2. It is sufficient in an action of trespass, to show a possession ip the plaintiff. The plaintiff proved a possession of the beach to high-water mark. AP-Clean's evidence shows an exclusive possession, and from the testimony on the other side, it appears to have been ■coupled with the right to fish. 3. Anow was interested in the event of the suit, as well as in the question put to him, for it related to the question of a free or common fishery, in the advantages of which, as one of the; inhabitants of the island, be would participate. Persons claiming under a common right cannot be witnesses for each other. One commoner cannot be evidence for another; as the record would be evidence in a subsequent action, and the witness must swear in favour of a title iu himself. The witness would not remove the objection, for a release to an inhabitant could have no operation. His interest was not that of a particular individual, hutas an inhabitant of Staten-Island. It depended on the residence ofthe person, and was not tfansferrable. m • • '•■ii Jbut it is said, that he was a competent witness to prove, that the locus in quo was a highway. He was called merely to show that a certain public road had been laid out, and which was above fifty yards distant from- the place where the trespass was committed. Any evidence, therefore, as to the existence of such a highway, would have been irrelevant. 4. The construction of a patent is matter of Jaw; but the plaintiff rested his title, not on the patent only, but on a possession more extensive than the grant in 1891. It does not appear, however, from the case, but that the judge did leave the construction to the jury. 5. The charge to the jury was correct; it was merely that they were to consider what damages the plaintiff had sustained by the interference of the defendants with his right.
    
      
      1 Term, 30a Douglas, 359» 1 Strange, 650.
    
    
      
       7 Term, 62. 3 Term, 35.
      
    
    
      
      
        Gilbert's Law of Ev. by SbiIqlWÍcÍC) p 112, 113. Ventris, 351. 4 Term, 17. 5 Term. 604.
    
    
      
       3 Term, 35.
      
    
    
      
      
        Peake's cases at •A'’. P. 18. Pollard v. Scott.
      
    
    
      
      
         Doug. 139. 3 Perm,35.
    
    
      
      
        Puller, Ji. P. 84.
    
    
      
       Skinner,174. where a cam-ed°by pre-*11*" scripiion, in right of a par-ticukr estate, ^ rule°does not apply,
    
   Thompson J.

delivered the opinion of the court. ¡¿Several points were suggested in support of the motion to set aside the verdict in this case; the most important of which relates to the competency of Anow, an inhabitant of Staten-Island, who was offered by the defendants as a witness, to establish a common right in all the inhabitants of Staten-Island to the fishery in question. This witness was, I think, properly rejected. A commoner is inadmissible to prove a right of common, uuless the common be claimed by prescription, in right of a particular estate. The reason of the rule is, that in case of custom* ary commoners, a verdict in an action fer or against one, is evidence for or against another claiming in the same right. (Ld. Raym. 731. Doug. 374. Skinner, 174.1 East, 355. 1 Term, 302-3. Peake’s Ev. 31.) The witness was, therefore, directly interested in the event of the suit. Nor could the release, offered by the witness, remove the objection ; since it could pass no right to the plaintiff, nor extinguish any interest which the witness had. Should he have exercised the right of fishing at any time after-wards, no person could have taken advantage of this re-lease. The right belonged to the witness, or other persons, not in their individual capacity, but as inhabitants of Staten-Islánd. The right set up by the defendants, if it existed at all, depended on residence exclusively. And although the witness might bind himself by covenant not to exercise this right, he could not assign or release it, as it was local and personal. If the acceptance of the release would have removed the interest, it is well and rationally settled, that in such case, the witness having done every thing in his power to render himself competent, the obstinacy of the opposite party shall not prevent his being examined. It was likewise offered to be proved by this witness, that a certain road, as laid out, had been used as a common highway, without interruption, for a great lenghth of time. Although the witness might have been competent for this purpose, the testimony would have been immaterial and irrelevant; for the locus in quo, is fifty yards distant from this road.

2. M’Clean was properly admitted a witness on the part of the plaintiff. He could have no possible interest in the event of this suit; this verdict could never be given in evidence in a cause between him and the plaintiff; besides as an inhabitant of Staten-Island, claiming a common fishery, his interest was against the plaintiff.

3. The sole and exclusive possession of the plaintiff was sufficiently and fully proved. The locus in quo had been rented by RP Clean for a number of years, from Catherine Vandeivinter and Anne Jacobson, from whom the plaintiff purchased by deed, dated'the 28th August, 1799; after which M’Clean held under the plaintiff, and two of the defendants recognized his title, by paying for the privilege of fishing.

4. If the defendants failed in making out their justification, and the plaintiff’s fight to the locus in quo was established, I cannot see in what respect the judge was incorrect in his charge to the jury. It was certainly proper for the jury in assessing the damages, to take into consideration the injury the plaintiff had sustained by the defendant’s interfering with, and encroaching on, his rights. This was theg-«.st of the action; and thus far, and no farther, did the judge direct the jury with respect to the rule of damages. Some other objections of minor importance were suggested on the argument, none of which, however, are tenable; and of course, the motion must be denied.

Judgment fof the plaintiff.  