Kirk v. Ewing

Rogers, J. — There is no rule better established, than that a party to the record cannot be examined as a witness, and this not on the ground of interest, but from considerations of policy, 5 Watts & Serg. 333; Given v. Albert, 3 Wend. 119; 4 Wend. 451; 10 Pick. 57; Wolf v Fink, 1 Barr, 439. The defendants joined in the plea of not guilty, but at the trial, two of them, disclaiming all title to the property, were permitted to withdraw their plea; but without more they do not cease to be parties to the suit. They may still be liable to the plaintiff for costs, and also for mesne profits, which can only be ascertained by trial, or by judgment by default. It appears by the return of the sheriff, the defendants who disclaimed were in possession at the time -suit was commenced, and as such were prima facie liable, if the title to the property was in the plaintiff. It is true that if the plaintiff includes persons in a suit, against whom no evidence is offered, they may be witnesses, but that cannot be alleged here. Besides, if wanted as witnesses, the jury should have passed on their case before they were examined. The circumstance of being a co-defendant is an exclusion, although a verdict in his favour would remove the objection of incompetency. We are therefore of opinion there was error in receiving the testimony of James C. Ewing. In the other bills, we perceive no error, nor is there any in the charge; nor do they involve any principle which requires particular notice. Whether the levy on the property, as the property of the husband, is constructive notice to the wife, we do not undertake to determine, as that point does not seem to have been brought to the attention of the court below. Judgment reversed, and a venire de novo awarded.