
    Van Norden vs. R. A. Striker and G. Striker.
    ALBANY,
    Oct. 1832.
    In assumpsit against two defendants, where one of them is misnamed in the capias which is returned non est inventus as to him, and the suit is proceeded in against the other defendant who pleads to issue, the defendant as to whom the misnomer has happened, although nominally not a party to the suit, is not competent to be sworn as a witness for his co-defendant.
    Error from the New-York common pleas.
   The plaintiff sued Richard A. Striker and George Striker in assumpsit, for the use and occupation of a house. Richard was returned taken, and George not found on the capias ad respondendum. Richard pleaded the general issue. The jury by their verdict found a.joint hiring by the defendants. On the trial, the defendant called Gabriel F. Striker as a witness, and offered to prove by him that he, the witness, was the sole hirer of the premises, and that he and Richard were not jointly concerned in such hiring. He was objected to as not competent to testify as a witness, on the allegation that he was the person sued by the name of George Striker. Being sworn on his voir dire, he stated that he expected he was the person sued by the name of George, but that he had not been arrested, nor had any process been served upon him, and admitted that he was present at the time of the making of the contract for the hiring spoken of by the plaintiff’s witness. The court decided that he was not competent to be sworn in chief, and the defendant excepted. The plaintiff had a verdict, upon which judgment was rendered in his favor. The defendant sued out a writ of error, and This Court affirmed the judgment of the common pleas.

J. Graham, jun. for plaintiff in error.

J. Clisbe, for defendant in error.  