Jan. 2.
Rogers, J.The principal controversy is between the . owner of the mechanic’s lien and the terre tenant, who takes defence pro interesso suo. Before the jury were sworn, the terre tenant offered to plead in bar that the premises on which a lien was claimed had been sold under judicial process, and the lien of the claim, if any, thereby discharged. This plea, if true, was an answer to the demand of a lien against the land in the hands of a lawful purchaser, and if defective in substance or form, the subject of special or general demurrer. It is nothing to the purpose that the same *342matter of defence may be made on the general pleas, as the party has a right, of which he cannot be deprived, of bringing his case before the Court, either in the form, of a special plea on the plea of payment,' or the general issue. This is ruled in Roberts v. William, 5 Wh. 186—a case very much like the present. Nor is it any objection that it was not pleaded puis darrein continuance. The distinction as to such pleas has no place here since the Act of 21st March, 1806, which allows the defendant to alter his plea oji defence on or before the trial of the cause. The amendment is a matter 'of right, and, if refused, it is error, as has been repeatedly ruled. The Act secures the right to the adverse party, if taken by surprise, to have the trial postponed until the next term. It has never been supposed that when a plea is added on the trial, although after the last continuance, all other pleas were withdrawn. Such a decision would be destructive of all the beneficial effects of the statute. It is not regarded as a substitution, but an additional plea, of which the party has the benefit by force of the Act.
That the Court cannot prevent an attorney from being a witness, is ruled in Fear v. Drinker, 8 Barr, 520. But that they may not prevent him from addressing the jury, has not yet been decided, although perhaps an intimation to that effect may be discerned in the ease cited. Here the exception is to Mr. Sterigere as a witness on the ground that he cannot act in the double capacity of attorney and witness. This exception is not well taken, and he is a competent witness, as is there ruled, notwithstanding he is counsel. Had the objection been to his addressing the jury after testifying for his client, a different question would be presented, on which it is not my intention to express any decided opinion. Perhaps such a power may be necessary to be exercised, however, by the Court trying the issue, under particular and peculiar circumstances, and under a sound discretion.
When the case reported in 5 Barr, 151, was before the Court, it was reversed, because the Court of Common Pleas took for granted that was the turning point of the cause, that the terre tenant was a purchaser for value actually paid. It was the opinion of this Court- on the former hearing, that if the terre tenant was a bond fide purchaser, having paid the purchase-money, his title could not be disturbed. The cause was sent down for another trial, with an intimation that it ought to be left with the jury, with a direction to find for the terre tenants generally, if they shall prove that they have paid the entire purchase-money, not merely secured it; and *343for the plaintiff to the amount of the unpaid residue, if their demand shall reach so far. On the former trial, it was taken for granted that the assignment, which is the foundation of the terre tenant's title, was valid; whereas, as is ruled by the Court, it is void: and this brings up the question whether the Court erred in excluding the evidence included in the ninth exception. The Court of Common Pleas seems to have proceeded on the erroneous assumption that, inasmuch as the assignment is void, no title passed to the purchaser, although he paid in good faith all the purchase-money, and the money was paid over to the creditors. According to the case already cited, Hennessey v. The Western Bank, there is no doubt the assignment is at least voidable, because the assignors stipulated for a release, and except from the assignment their household furniture and such articles as by law are exempt from execution. Had the deed contained nothing more than a reservation of such articles as are exempt by law, there would be great force in the argument that it does not avoid the instrument; but that this is a sound construction of the assignment, is too clear to admit of doubt. The reservation extends to all their household goods, of whatever description or value, and, in addition, such articles as are exempt by law. The indication of intention is conveyed in language which it is difficult to misunderstand. But although the deed of assignment is voidable, it does not follow, as is ruled in Okie v. Kelly, decided at this term, that the title of the purchaser is worthless. This depends on the payment of the purchase-money and the distribution of the proceeds among the creditors, as is conclusively shown in the case cited, the reasoning of which it is unnecessary to repeat. But it is now contended that the evidence offered was insufficient to prove payment, but it cannot be doubted the proof was proper to be submitted to the jury; and, I may add, that the evidence in Okie v. Kelly, which was adjudged sufficient proof of payment, was not stronger, if indeed so conclusive, as the evidence excluded by the Court. All the other errors, sixteen in number, have been abandoned, except the eighth, and the answer to the seventh point and these are overruled, for the reasons given by Judge Krause.
Judgment reversed, and a venire de novo awarded.