Mr. Justice Terry concurred.
This was an action of trespass quare clausum fregit," as well as an application to the equity side of the Court for a perpetual injunction.
On the trial of the cause the defendants offered to call as a witness, one C. Nash, who was one of the defendants, though not served with process; to which the plaintiff objected, and the objection was sustained by the Court; this ruling is now assigned as error. •
It is a familiar rule of the common law, that a party to the record cannot be called as a witness, except in chancery proceedings, and in actions of tort, in which the Court may direct one of the defendants, against whom there is no evidence, to be discharged, and permit him to be sworn as a witness. It is urged by the defendants that the mere fact of declaring against a party, is not sufficient to make him a defendant, and that.he should be brought in by service before he is disqualified; that the defendant, Nash, was not interested in the result of the issue between the plaintiff and defendants then before the Court, and not liable for contribution for costs and damages recovered.
In support of this proposition, several authorities have been cited by the appellant, which are directly in point. The first is the case of Stockham v. Jones (10 Johnson, 51), which was an action of trespass; where two of the defendants not taken, were permitted to be sworn as witnesses for their co-defendants. In deciding this case, however, the Court say, that the true test of a witness, as established by their former decisions, is his interest; and inasmuch as these defendants would not be liable for contribution, they were competent. The next case is that of Wakely v. Hort, 6 Binney, 316, the facts of which are very similar to the case in 10 John., and which is decided on the authority of that case.
In opposition to these authorities, we have the universal rule of the common law, as well as the decisions of almost every State in the Union. See Doughty v. Dorsey, 4 Bibb, 207; Brown v. Howard, 14 John., 119; Bates v. Conkling, 10 Wendell, 309; Anderson, for *195Smith's use, v. The Administrator of John Brady, 2 Yerger, 297; Higdon’s Heirs v. Higdon’s Devisees, 7 J. J. Marshall, 52; Fear v. Everstone, 20 Johns., 142; Bridges et al. v. Armour et al., 5 How. U. S. Reports, 95; and Wolf v. Frink, 1 Barr’s Pen., 439, in which this doctrine is thoroughly discussed. From an examination of these authorities, it will be perceived that the decision in 10 Johnson, and 6 Binney, have been disregarded by the Courts of New York and Pennsylvania in subsequent adjudications, and that the reason of excluding a party to the record, is not on account of interest, but on high grounds of public policy, and to prevent the too frequent temptations to perjury, which otherwise would be offered. In the case in 1 Barr., page 441, the Court held that a party “should not be allowed to qualify himself as a witness, by avoiding the service of the writ;” the Court further adds, that great mischief had arisen by allowing plaintiffs to become witnesses, which had become so intolerable that they were compelled to retrace their steps. In conclusion, the learned Judge remarks, “ that it is better that a just cause should occasionally be lost, than that a temptation should be offered to perjury.”
In addition to what has been said upon the authorities, we are of opinion that the question is settled by the first subdivision of the three hundred and ninety-second section of the Practice Act, which expressly excludes a party to the record from testifying.
The motion to dismiss, or strike Nash from the record, was properly overruled, as there was evidence before the jury connecting him with the trespass. The instructions of the Court were substantially correct.
Judgment affirmed with costs.