delivered the opinion of the Court.

Inasmuch as it appears from the 2d bill of exceptions taken by the defendant in error to the decision of the County court excluding Joseph P. Bishop as a witness on the ground of incompetency, that said Bishop was a joint tenant with said defendant of the premises, the possession whereof was the subject in controversy, *109that the defendant had relied upon the deed which constituted said jointtenancy with said Bishop in his defence, it seems to the Court here that said Bishop was directly interested in the result of the suit, being seized with his co-jointtenant par my et per tout, the possession of the defendant was his possession, and his evidence tending to maintain such possession in the said defendant was evidence tending to establish a fact enuring to his own benefit; and that he was properly excluded as an incompetent witness.

And it further seems to the Court, that the County court did not err in overruling the objection of the defendant in error to the testimony set out in his first bill of exceptions, inasmuch as although the contract the evidence tended to prove may have been void under the statute of frauds, it was still competent for the plaintiff to shew that the defendant had entered under an agreement to rent the premises, and stood in the relation of tenant to the plaintiff; and whether such tenancy was to endure for a year or a longer period, could not affect the question depending on the relation the parties bore to each other when the defendant entered upon the premises.

It is therefore considered by the Court that the judgment of the Circuit court reversing the judgment of the County court is erroneous; and the same is reversed with costs to the plaintiff in error. And this Court proceeding to render such judgment as said Circuit court should have done, it is further considered that the judgment of the County court be affirmed, and that the plaintiff in error recover of the defendant in error his costs by him about his defence in the Circuit court expended.

dissented.

He said he thought the judgment of the Circuit court was wrong in holding that Bishop was an incom*110petent witness, whatever might be the rule in regard to other actions. That by express provision of the statute regulating writs of unlawful detainer, a judgment in such a proceeding concluded nothing in regard to the tjt]e or rjght 0f possession, the effect being only when for the plaintiff to give him the mere possession, and when for the defendant to leave him in the possession ; but in no wise affecting the title or right of possession in any higher action between the same parties. That the judgment, if for the plaintiff, would give him no action against the defendant or the witness for mesne profits, and if for the defendant, no protection to him or the witness in respect to future profits; and that in this case a judgment for the defendant would be no evidence between him and the witness as to the title or right of possession, nor give any possession to the witness if he should be kept out by the defendant.