
    Lessee of Matthias Shirk against John Vanneman.
    A witness may be admitted, unless directly interested in the event of the cause, Or can give the verdict in evidence in his own favour in a future suit,
    
      Ejectment for lands on the Frankstown Branch of Juniata. The title turned out as follows :
    Joseph Bell obtained a warrant in 1755, for 100 acres; and John Armstrong, esq. obtained another warrant for 200 acres on Juniata, adjoining and below Alexander Lowrey, in 1762, on which latter warrant he executed a survey of 449J acres in the same year; but finding that the earlier warrant of Bell called for the lands, he agreed to divide the survey equally with him ; and Thomas Smith, esq. accordingly did divide the same by his order on the 25th April 1775, John Stephens, the son in law of Bell, choosing the upper tract. Bell having vested (as it was said) Stephens with his right, the latter entered into an agreement with John Sensenigh, and sold him his tract for ioool. on the 16th December 1777, and received from him 860L, which was indorsed on the articles. In the fall of 1777, the settlers at Frankstown were driven off by the Indian ravages, and did not return till 1784. In 1789, the defendant purchased from Armstrong the one moiety of the survey of 449-J acres, whereby he got into possession of the other moiety. A judgment having been entered in Bedford county on the 26th February 1780, against Sensenigh, the lands in controversy were afterwards £ -, *duly seized, condemned and sold, and afterwards on the 20th November 1793, duly conveyed by the sheriff to Henry Weaver, who conveyed the same to the lessor of the plaintiff.
    Stephens being dead, the other heirs released to his son John Stephens, jr. on the 1st December 1797, and he on the 12th December 1797, conveyed to the defendant.
    The deposition of the aforesaid John Sensenigh, taken under a rule of court, proving that he had executed a bond to Stephens the elder for 140I, the residue of the consideration of the premises, which he had afterwards paid, and the same was indorsed thereon by way of receipt, but that the same bond was casually lost: was offered in evidence on the part of the plaintiff, and excepted to.
    The defendant’s counsel admitted, that Sensenigh was a competent witness, to prove his having given a bond for the 140I., but not to shew that he had discharged it. The verdict in this suit might be given in evidence in a subsequent action brought on the bond by the representatives of Stephens. If a verdict be had on the same point and between the same parties, it may be given in evidence, though the trial was not had for the same lands. Gilb. Law Evid. 29. If a verdict be given against the defendant on the same point, though another party were plaintiff, yet in some cases it may be given in evidence, because the defendant in the former cause had a liberty of cross examination. Ib. 32. One who has no prejudice by the verdict can never give it in evidence. Ib. 34. Hard. 472. By the sale of the heir to the defendant, he becomes a privy to the contract between the ancestor and Sensenigh, and no verdict shall be given in evidence, but between such who are parties or privies to it. Bull. 232. A verdict with the evidence given in an action by a common carrier for goods delivered to him to be carried, may be •given in evidence in another action brought by the owner against the carrier for the same goods. Ib. 243. As Sensenigh therefore may receive an eventual benefit, by swearing that he had paid the 140I., his testimony on that head shall not be received.
    
      E contra for the plaintiff,
    it was insisted, that in no shape whatever could this verdict be given in evidence in any future suit against Sensenigh. It is a settled rule, that no one can take benefit by a verdict that had not been prejudiced by it, had it gone contrary. Gilb. Law Evid. 33. He neither gains nor loses, in the event of the plaintiff’s success, or miscarriage in the present action. The plaintiff derives a title through him by act of law, *under a sheriffs sale, and he is entitled „ to a credit on the judgment for the amount of the sale. *- ” Great allowance must be made for the want of title papers in the case of sheriff’s vendees, otherwise injustice must arise. The bare possibility of an action being brought against a witness, is no objection against him. 1 Term Rep. 163-4. Different underwriters may be witnesses for each other on the same policy. 3 Term Rep. 27. The inclinations or wishes of witnesses go strongly to their credit, but not to their competency. Ib. 310. In an action by an indorsee of a bill of exchange against the acceptor, the latter may call the payee as a witness, to prove that the bill was void in its creation. 7 Term Rep. 601. The correct rule is laid down by Ld. Kenyon, that “ho objec- “ tion can be made to the competency of a witness, upon the “ ground of interest, unless he .is directly interested in the event “ of the suit, or can avail himself of the verdict in the cause, ■ “ so as to give it in evidence on any future occasion in support “ of his own interest.” Ib. 62. Adapting this rule to the testimony offered, it is confidently presumed to be admissible.
   Yeates, Justice.

I cannot see how the verdict in the present cause can be received in evidence in any suit hereafter to be brought against Sensenigh, by the representatives of Stephens the elder. Neither he nor they are parties hereto, and have not the benefit of a cross examination. To each of them it is res nova, inter cilios acta. Nor can Sensenigh by any possibility, either gain or lose by the event of this action. The rule laid down by Lord Chief Justice Kenyon fully settles the point. Reliance has been placed on the case of the carrier cited from Bull. Ni. Pri. 243. There the evidence given by the carrier, against the wrongful holder of the goods, with the verdict obtained by him, were again received in evidence against the carrier, when the owner sued him for the same goods. It was strong proof against him that he had the last plaintiff’s goods. It amounts to the carrier’s confession in a court of record. But are the two cases parallel ? If Stephens’s executors or administrators sued Sensenigh on this bond for 140I., could the latter give the verdict in this cause in evidence, and shew that by his testimony, the bond had been proved to be fully discharged ? The absurdity is too gross to be pressed for one moment.

Messrs. C. Smith and Henderson, pro quer.

Messrs. Duncan, Walker and Allison, pro def.

Indeed, it seemed almost unnecessary to determiné the present question. It is agreed, that the deposition may be received, to shew that Sensenigh executed a bond for the balance of the consideration money, pursuant to the articles. If that is proved, *an equitable estate would vest in Sensenigh under the *199] agreement, which would pass by the sheriff’s sale, though if the bond remained unpaid, the premises might be chargeable with the payment thereof.

Brackenridge, J.

Arguments respecting testimony are a delightful part of the practice of the law; they shew the good generalship of the contending counsel.

The plaintiff claims under an agreement with Stephens, in equity. The defendant holds under a conveyance from his heirs, at law. Sensenigh is liable for the money on the bond, in all events, if it has not been paid. Admitting that in a suit on the bond, the verdict here might be given in evidence by Sensenigh, still it would be but prima facie evidence, that the money was paid ; and it might be repelled by shewing, that the verdict was founded in part, on the testimony of the party himself. The radical principle respecting verdicts, is that they may affect the interest of the witness or party.

The deposition was read in evidence.

It was then objected by the defendant’s counsel, that the plaintiff could not succeed, unless a conveyance from Bell of his •warrant right to Stephens was shewn.

To this, the plaintiff’s counsel answered, that they also claimed under Armstrong’s survey, and the consequent possession of Stephens under the agreement'with Bell. Besides, a grant from Bell may be presumed, from his non-claim and acquiescence since 1775. The defendant also claims under a conveyance from the heirs of Stephens, and shall not now be admitted to disaffirm that right.

The court said, that this objection in the mouth of the defendant, who held under Stephen’s title, against the sheriff’s vendee, came with an ill grace from him. The jury would however weigh all the presumptions, and circumstances attending the case.

The plaintiff obtained a verdict without further controversy.  