Jackson ex dem. Caldwell v. Hallenback

Spencer., J. delivered the opinion of the court. M‘Master, under whose, warranty deeds both parties claimed the. premises in question, was undoubtedly admitted as a witness, on the principle that he stood indifferent between them, and was equally liable to either, in case the one or the other prevailed in this action. If that had been his situation, the case of Ilderton v. Atkinson* would have justified his admission; but he was not in that situation, and his interest was undoubtedly in favour of the defendant who called him. The question between the parties was whether the pri- or deed comprehended the premises in question or not. [395] If it did, then the plaintiff had a right to recover. That the deed under which the defendant claimed, included the premises, was not questioned. If, then, M’Master could so locate the first deed as not to include the pré-' mises, he would avoid a responsibility on his warranty to the last grantee ; and the first grantee could never, in consequence of such location, have any remedy against him, because he would have failed, not for the want of title in. M’Master, the grantor, but as to the boundaries of the land granted. It is evident, therefore, that M’Master was interested in favour of the defendant; and as the verdict might be evidence against him, had the defendánt failed, and as he was, by his evidence, exonerating himself from all responsibility, he was an incompetent witness without a -release.* We are of opinion, therefore, that, there ought to be a new trial, with costs to abide the event of the suit. New trial granted. Footnotes [*] 7 Term. 480. [*] 3 Term, 308. 4 Term, 580.