
    Stockham against Jones and Kearney, impleaded with Jerome.
    
      ALBANY,
    
    
      Jan. 1813.
    
    
      In an action ^uarecfausum ?5aiust three joint trespassers, two were ta&emdash; ken, and the °dhnot‘found-t)liltv"(he *m!e which had not been arrested, was a competent witness for the other two defendants, on the trial of the cause. Not having a legal and fixed interest in the event of the cause, the objection goes to his credit, not to his competency.
    
    THIS was an action of trespass quare clausum fregit. The oapias ad respondendum was served only on Jones and Kearney, two of the defendants, and was returned non est inventus, as to the ’ _ other. The plaintiff declared against the two that were arrested, and the other defendant as returned not found. Jerome never appeared or pleaded. The cause was tried at the Onondaga circuit, in 1812, before Mr. Justice Spencer. It was proved that Jetome was jointly concerned in the trespass. The defendants J offered Jerome as a witness, but he was objected to as incomp©tent, and rejected by the judge.
    The jury found a verdict for the plaintiff, against the other two defendants, for 20 dollars.
    A motion was made to set aside the verdict and for a new trial; and it was agreed that if the court should be of opinion that Jerome was a competent witness, the verdict should be set aside, and a new trial granted, with costs to abide the event of the suit; otherwise, the verdict was to stand.
    
      Birdsey and Gold, for the defendants,
    contended that Jerome was a. competent witness. It being an action of trespass, he could not be called upon by the other defendants to contribute to the amount of damages which might be recovered. He was not, therefore, interested in the event of the cause. His being a joint trespasser did not render him incompetent. And though made a nominal defendant, yet never having been arrested, he was not a party in the cause, and could not be affected by the verdict.The rule laid down by Buller
      
       is not now the law. The rule since established, by various decisions of the English courts, as well as in our own, is, that a person not having an interest in the event of the cause, may be a witness; all other objections go to his credit and not to his competency.
    
    N. Williams, contra,
    insisted that it was an established and well settled rule, that no party, or co-defendant, or co-trespasser, could be a witness in the cause. On an indictment against joint trespassers, one of them cannot be admitted as a witness until he has been acquitted. Though not interested, as it regards the damages to be recovered, yet being a joint trespasser, Jerome must be considered as particeps criminis.
    
    
      
       8 Johns. Rep. 418.
    
    
      
       2 Johns. Rep. 365.
    
    
      
      
        Bull. N. P. 286.
    
    
      
      
         1 Sannd. 291. notes. 1 Term Rep. 163. 3 Term Rep. 27. 4 Burr. 2251. Stra. 613. 2 Esp. Rep. 552. 2 Campb. Rep. 334. n.
    
    
      
      
        Peake's Ev. 153. Cases temp. Hardw. 123. 264. Bull. N. P. 286.
    
   Per Curiam.

As Jerome was named in the writ and could not be taken, and was proved to be a party concerned in the trespass, he was an incompetent witness according to the old rule. (Bull. N. P. 286. Lloyd v. Williams, Cases temp. Hardw. 115.) But since the case of Bent v. Baker, and which has for many years been adopted by this court, as the proper rule, (Van Nuys v. Terhune, 3 Johns. Cases, 82.) the incompetency of a witness, on the ground of interest, must be confined to a legal fixed interest in the event of the suit. Jerome had no such interest, and the objection went only to his credit.

The verdict must be set aside, and a new trial awarded, with costs to abide the event.

New trial granted.  