The opinion of the Court was by
Whitman C. J.The exception is to the admission of a witness. The action being trespass qua. clau. and soil and freehold being pleaded, and issue joined thereon, the grantor of the plaintiff, who was his lessee, was offered as a witness to disprove the defence set up; and the plaintiff, the case finds, having released to him his covenants contained in his lease, the Court admitted him to testify. It is argued, that he thus came to support his own title, and therefore was an interested witness. It may be admitted that he had a strong temptation to pervert the truth; but this is always the case with witnesses, who come to support a title depending upon facts precisely like those on which they must rely for the support of their own. Yet.,they are not considered as witliin the rule excluding witnesses on account of interest. The witness, after he had been released, had" no interest in the event of this particular suit. He was merely interested in the question of title, as it might arise on some other occasion. To exclude a witness he must have a present, certain and vested interest.; and this must be either in the matter of the suit pending, or in the judgment to be recovered. The witness was not in either of these predicaments. He could not have been entitled to any part of the fruits of the judgment; nor could he avail himself *409of the decision in any suit involving the title between himself and the defendants.
The decision in the case of Smith v. Chambers, 4 Esp. R. 164, would have been directly in point for the defendants, if the lessor had in that case been released from his covenants. He was rejected as a witness for his lessee solely upon the ground, that he was under either an express or an implied covenant of warranty as to the title. As it is, the case is virtually an authority the other way; for it is manifest, that, but for the covenants, which remained uncancelled, the decision would have been in favor of the admissibility of the witness. Indeed grantors are often admitted to support the titles of their grantees upon being released from liability upon their covenants. Jackson, ex. dem. Mapes v. Frost, 6 Johns. R. 135; Van Hoesen v. Benham, 15 Wend. 164.
The cases cited of lessees in possession of demanded premises, who were not admitted as witnesses to support the titles of their landlords thereto, afford no ground upon which to question the correctness of the ruling of the Judge at the trial. While they remained lessees in possession, they clearly had a direct interest in the event of the suits. The decisions against their landlords would have caused them to be ousted of their tenancies.
Exceptions overruled, judgment on the verdict.