The question in controversy between these parties, was, whether tiie horse belonged to the Plaintiff, or to the witness Thomas Bailey, under whom the Defendant claims ", and this depended on the fact, whether the Plaintiff and Bailey liad made an absolute or conditional sale. For the purpose of proving tli at the contract was of tiie latter description, Bailey was called on as a witness for the Plaintiff. To destroy-the effect of his testimohy, Austin and McNeilly are introduced on the other side, .who testify to declarations made by Bailey, tending to shew that the exchange was absolute, which declarations, if believed, go to impair the credibility of Bailey.’ It is, therefore, perfectly regular for tiie Plaintiff in reply to this evidence, to' shew other declarations made by the witness in affirmance of what he bar, now sworn, and that lie is still consistent with himself — (Gilb. Ev. 135.) ■ It is admissible in another point, of view : the Defendant claims under Bailey, and what lie said concerning the title, while he was in possession, is evidence against the Defendant — (3 Murph. Rep. 150.)
This caso seems to have beea fairly left to the Jury, under the charge.of the Court — evidence was offered on both sides, and the ,] ury were the proper judges of it | and I cannot see any objection to the vor-dic¡ they have found.
jJut if has been objected that the testimony of Austin ought not to have been received, when he related a conversation between himself and the Plaintiff, and also a conversation which had taken place at another time between himself and the witness Bailey. It must he kept in view, that at the time when both those conversations took place, the title to the horse was either in the Plain tiff or in the witness Ssailey, and that it was subsequent to that iisoe. that any claim was set up to the horse by the Defendant. Under these circumstances, it was as proper that those conversations should he given in evidence, an any contract made at that timo by the Plaintiff rand that witness. Evidence of those conversations may not he ¡so strong to fix the title of í ho horse, as a contract 'eiule by the parties, but it is evidence tending to the r/.me end.
i therefore think the rale for a new trial should be discharged.
ItuifPKiJfiosr, Judge, concurred.