
    Clapp v. Mandeville.
    Interest in tile question does not render the witness incompetent.
    An interest acquired after the event which the witness is called on to prove, does not disqualify him.
    A naked agreement of counsel to let the fate of one suit abide the fate of another, made without the consent of one of the plaintiffs and contrary to his wishes, does not ren' dor him interested in the event of the other suit.
    ERROR from the circuit court of the county of Adams.
    An attachment at the suit of the appellant against one John F. Golding, was levied upon a negro, as the property of the defendant, which was claimed by Mandeville, the appellee, and an issue made up under the act of the legislature, was submitted to the jury. On the trial of this issue, B. Cozzens was offered as a witness by the appellant,'who was objected to on the ground of interest. On his voir dire, Cozzens stated, that he had levied an attachment upon the negro then in controversy, and that Mande-ville, the appellee, had claimed title to the negro, and that, that claim was to be tried at that term. He stated that he had made no agreement that his case should abide the event of this suit, and was not willing that it should. The attorney for Cozzens, then stated that an agreement had been that day made, that if the issue in this case was decided in favor of Mandeville, that the suit in favor of Cozzens should be dismissed, and that, that case should abide the event of this. The court thereupon decided, that Coz-zens was an incompetent witness. And this is the error assigned by the plaintiff.
    Montgomery, for plaintiff in error.
    Cozzens was clearly a competent witness. His having a similar issue pending and to be tried with the same person did not render him incompetent, because the decision of this issue could not be used for or against him on the trial of the issue in his own case; besides, it was clearly his interest that the attachment in this case should fail, as it would leave the property liable to his attachment above, which made his interest on the side of the claimant.
    The interest of the witness in the verdict is the criterion. If he be interested in the question, and not in the verdict, the objection goes to his credibility and not to his competence. See Norris’s Peake, 209; note. Ib. 214. 6 Binney, 319. 10 John’s Rep. 21. 4 Mass. Rep. 488. 1 Yates, 84.
    The objection that the witness had become interested subsequent to the occurrence of the facts, to which he is called to testify, is .not tenable. The rule is clear that the witness must be interested, not only at the time of trial, but at the time the fact he is called on to give evidence of, happened; for if after the event the witness becomes interested, without the interference of the party by whom he is called, such interest will not render him incompetent. Norris’s Peake, 232. 1 Cook’s Rep. 115. 2 Root’s Rep. 406.
    Boyd, on the same side.
    Freeman, for defendant,
    Insisted that if a party be really interested in the event of the cause, he is not a competent witness, and cited 1 Starkie, p. 20-1, 102-3, and the authorities there cited.
   Opinion of the court by

Trotter, Justice :

That the witness was not incompetent, by reason of his interest in the question merely, which he was called upon to answer, is now too well settled to admit of doubt. For whatever difficulties may have been felt upon that subject, before the case of Bent v. Baker, 3 Term Rep. 27, they were effectually put at rest by that determination. It only remains, therefore, to ascertain how far his competency was destroyed by the agreement mentioned in the record, by which it is said he was made interested in the result of the suit. I think it a very fair inference, from the whole of the evidence taken together, that the agreement stated by the attorney, was the result of an arrangement of counsel to avoid the necessity of two trials, in cases so similarly situated, that it was supposed the decision upon one, would be considered a satisfactory decision of both. For Cozzens states, that he had made no such agreement, and that he was unwilling that his case should abide the event of the one on trial. If that be so, it cannot affect the competency of Cozzens, for two reasons:

1. Because it was a mere arrangement for the convenience of counsel, and therefore open to alteration, at the option of those who. made it, and especially so by Cozzens, who refused, it appears, to continue or submit to it. It was a mere naked agreement at best, and surely no court would hold the party bound by it, when it appeared to have been made without his knowledge, and was to be continued against his consent, as he openly declared.

2. And it would not exclude his testimony, because if it created any new interest, it was long after the event he was called upon to prove. For it is now well settled, that if the witness by his own voluntary act, or by the procurement of the party who objects to him, has acquired an interest in the verdict, after the event he is called to prove, the other party shall not for that reason be deprived of his evidence. 1 Peake, 105. The case of Baylor v. Smith’s heirs, 1 Littell Rep. 105, is one in which this point was fully considered by the court. By uniting with Baylor in the bond which he had given for the payment of the purchase money of the negro in controversy, Cockerel, who was offered as a witness by Smith’s heirs, had acquired an interest in the verdict, and was objected to by Baylor on that ground. But the court held that such an objection came with a bad grace from Baylor, by whose procurement the interest was acquired, and as the facts which the heirs wished to prove by the witness, existed long anterior to the execution of this bond, they should not be deprived of his testimony. In this case, there is no proof that the arrangement for the trial of the two suits together, which is the effect of the agreement, was brought about by any interference or act of the plaintiff. And we are, therefore, clearly of opinion that the witness should have been permitted to testify,’ and that the court erred in excluding him.

The judgment must be reversed, and a venire, de novo awarded.  