
    HOLMAN VS. ARNETT, et al.
    
      ■As to the competency of a defendant in attachment to testifi/as a witness.
    
    1. One whose property has been levied on in attachment, is a competent witness to show a sale of the same property to a vendee, previous to the levy — it not appearing that a sale of the property has been made, and the proceeds applied to the satisfaction of a final judgment against the defendant in the attachment.
    Error to the Circuit Court of Lauderdale.
    This was trespass, vi et armis, against William Arnett, Charles Manor, Griffin Reed, and Levi Todd, for taking a wagon. The defendants plead not guilty ; and on that plea, verdict and judgment were rendered for them.
    On the trial below, the plaintiff offered in evi-. dence, the deposition of Joseph Surber, duly and regularly taken, to prove that he had sold and delivered to the plaintiff, the wagon, for the taking which the action was brought.
    The testimony of Surber was objected to, on the ground that he was incompetent to testify: and it was proved that the wagon had been levied on as the property of Surber, the proposed witness, in virtue of an attachment in the hands of Arnett. The Court sustained the objection, and refused to permit the evidence to go to the jury — on which the plaintiff took his exception.
   HOPKINS, J.

— Ill this case, the action was tres* pass against the defendants, for forcibly taking from" the possession of the plaintiff, and carrying away a wagon, which belonged to him. The defendants proved, that an attachment had been le vieron the wagon, as the property of one Surber, whose Reposition the plaintiff offered as evidence that the property was his, in virtue of a sale of the wagon to him, which the witness bad made. The Court rejected the evidence, on the ground that the witness was incompetent.

If the property had been sold under the attachment, and the proceeds applied towards the satisfaction of a final judgment in the suit against Surber, he would have been an incompetent witness for the plaintiff. The proceeds of the sale having been so applied, would give him a right to a credit for the amount on the judgment which would not be affected by the recovery of the plaintiff. In such a case, he would be interested that the'plaintiff should recover. Such a result Would not make him liable as vendor to the plaintiff, as a judgment for the defendants in the action might and would leave his right to the credit for the proceeds unimpaired.

The only ground disclosed by the record, to shew the incompetency of the witness, is, that the property had been levied on as his.- If the property had not been sold, and the proceeds applied to a judgment against him in the suit by attachment, he was a competent witness when his deposition was offered. In such a case, his interest would be as great on one side as upon the other, as he would have no right, after the recovery of the plaintiff, to have a credit for the value of the property upon the judgment in the suit by attachment

The Court erred in rejecting the testimony.

Let the judgment he reversed, and the cause re--manded.- 
      
       Porters R.^ist ed.
     
      
       Rep.637;i i98.w'
     