Graves v. Griffin

The opinion of the Court, filed was delivered by Woodward, J. The only question we have here is, whether Joseph Rouse was a competent witness. On the principle of Post v. Avery, Kelley v. Eickman, 3 Wharton 419 and 5 Wharton 446; Patterson v. Reid, 7 W. & Ser. 145; Phinney v. Tracy, 1 Barr 173; McClelland v. Mahon, Id. 364; Clover v. Painter, 2 Barr 46; Muirhead v. Kirkpatrick, Id. 425, he clearly was not. Though not a party to the record, he should have been excluded', whether his assignment were real or fictitious ; for whilst one of tM parties to a contract in litigation is denied the privilege of testifying, the policy of the law is to close the mouth of the other. The rule is as applicable to evidence offered under the plea of set off as to that which a plaintiff may offer in support of his action.: Muirhead v. Kirkpatrick, above cited. It cannot be denied that there are several recent cases which in principle are irreconcilable with Post v. Avery and its cognates. See Carter v. Trueman, 7 Barr 325; Taylor v. Gill, 10 Barr 428; and Dutten v. Tilden, [178] 13 State Reports. But these cases were intended to restrain the rule from undue extension,- rather than to repeal it. It rests on sound reason and abundant authority, and this is a fit case for its application. Judgment reversed and venire facias de novo awarded.