¶1The opinion of the Court was given- by,
¶2The possession of the plaintiff was sufficient, ins this case, to enable him to maintain- an action of trespass against any one except the owner, and those who acted under him. The defendant justified the taking the property, as the servant of John Bolton, the owner; and to prove this justification, introduced tbe-said John Bolton as a witness, he having first executed and delivered to him a release. The facts testified to by the witness were adjudged to be a full justification, if believed ; and the jury was so charged. Two questions are made ; 1st. Whether the facts testified to, were a justification ; 2nd. Whether the witness offered was a competent witness.
¶3The testimony shows most unequivocally that the plaintiff had no property in the cow for which the suit was brought; that the sale under which he claims, was conditional, that the property was *563üríó't to vest until paid for; and that it had not been paid for in full. The plaintiff having failed to fulfil the conditions on the performance ofw'hich he was to have the properly, alibis claim at law was gone. Whether he had any equitable right, is not here the matter in dispute. The owner might retake the property again, and divest the plaintifi of possession ; and would not be guilty of any trespass in so doing. The performance of the condition was neither rescinded nor waived, but insisted on ; and it was in accordance with the contract, that the owner proceeded to take the property into his possession. As the plaintiff had not performed the condition precedent, on the performance of which the property was to pass from Bolton to him, the jury was rightly directed that the facts, if believed, entitled the defendant to a verdict.
¶4The next question is, whether the witness oflered was properly admitted? The situation of witnesses, and the facts to which they testify, are frequently such as materially to affect their credibility. This is one of those cases. The credibility of a witness is, however,' for the jury to weigh. As it is not pretended but that this witness had sufficient religious belief to know and feel the obligation of an oath, and had not been convicted of any infamous crime, it remains only to enquire, whether there was any objection -to him on account of interest? for unless he is liable to some of those objections, there is no other ground on which he could have been rejected. There is no principle of policy, nor any thing arising out of the nature of the facts, he was called on to prove, which can operate to exclude, however they may throw a doubt on his veracity. Considering the witness offered as a co-trespasser, the authorities are, that he is a witness - for the defendant. When a witness is excluded on account of interest, it is supposed that he derives a benefit by a recovery in favor of the party who calls him. But we can see no benefit which a cotrespasser acquires by a recovery in favor of the defendant; it leaves him still liable to the plaintiff without any right to call for contribution.
¶5In the case under consideration, if defendant went off justified and acquitted, in consequence of the testimony of this witness, the witness was left liable to the plaintiff for any action or claim which the plaintiff might be entitled to against him, for procuring the cow tobe driven oft, or aiding or assisting the defendant in taking her away.
¶6Considering the witness as cotrespasser with the defendant he was a competent witness for him, without any release.
¶7If a release was at all necessary, it must have been because the *564w'lness was supposed to be under some obligation to indemnify the defendant, if there was any such obligation, it must have arisen from the' relative situation of the witness and the defendant, tin? former being the father, and the.lattér his son.
¶8Whether this was any legal obligation in' such a case or not, is of no consequence, as the defendant released the witness from any liability he might be under. On both points made in the case we are of opinion that the decision of the county court was right y and their
¶9Judgement is, therefore, affirmed.