Jacob Nessly v. Andrew Swearingen

Jacob Nessly v. Andrew Swearingen. THIS was an action of covenant on articles to convey land. Swearingen had purchased 500 acres of land from David Shepherd and sold it to Nessly, who had also purchased from Shepherd 900 acres of land, adjoining the first. Shepherd conveyed 1000 acres to Nessly, telling him that 500 of these were on Swearingen's account.—Shepherd had not title to more than 1000 acres. David Shepherd being produced as a witness, was objected to, as interested. [MAJORITY — President.] President. If the plaintiff succeed, the defendant will sue Shepherd, on his contract to convey to him. If the defendant succeed, the plaintiff will sue Shepherd, on his contract to convey to him. Thus being equally bound to both, he stands as indifferent between them, as if bound to neither, and is a competent witness. The opinion of the court was delivered to the jury in favour of the defendant; and the plaintiff then suffered a nonsuit.