We think the inhabitants of Tisbury were - competent witnesses, and should have been admitted. In Lufkin v. Haskell, 3 Pick. 356, and Odiorne v. Wade, 8 Pick. 518, it was decided, that the inhabitants were not competent to prove a right of way for all the inhabitants, or a right in all the inhabitants to take shell fish. The right for all the inhabitants, not as a corporation, but as individuals, was put in issue, and the cases were decided upon the ground that a verdict against the plaintiff would, by the common law, be evidence, if not a bar, in any suit he might bring against any other inhabitant; and so those inhabitants were -interested in the event of the suit. Reed v. Jackson, 1 East, 355. But now, there being no special plea, and no issue joined upon the point of custom, the judgment in this suit could not be used as evidence for or against the witness. The case then is brought back to the geheral rule, established by Bent v. Baker, 3 T. R. 27, that where the interest of the witness is in the question, and not in the event of the suit, it is too remote and contingent, and does not render him incompetent.
New trial granted.