
    Johnson v. Bourn.
    April Term, 1793.
    Joint Trespass — Separate Actions — Witnesses.—If separate actions be brought against two for a joint trespass, one defendant is a competent witness for the other.
    This was an action of assault and battery, brought by the defendant in error in the District Court of Charlottsville. There were two pleas put in, 1st not guilty: and 2dly, a justification. The defendant, at the trial, offered the testimony of a witness, against whom a separate action was then depending at the suit of the plaintiff for an assault committed at the same time. The court, refused to suffer the witness to be examined, considering him to be incompetent, on account of his being sued as a joint trespasser.
    The defendant below filed a bill of exceptions to the opinion of the court, and a verdict and judgment being given against him, he obtained a supersedeas from this court.
    Ronold for the plaintiff.
    There seems to be no good reason, for rejecting this witness upon the ground of incompetency. A person named in the simul cum, may give testimony for the defendant, in an action of trespass, Bull. Ni. pri. 285. Watson v. Shelly, 1 Term Rep. 301 is expressly in point. Hardw. Cas. 360 and 3 Term Rep. 27. — in the last case, this principle is laid down — that 'if the witness, is neither to gain, nor lose, by the event of the cause in which he deposes, or if the verdict cannot be given in evidence for, or against him, he cannot be objected to on the score of incompetency.
    ^Marshall for the defendant.
    My own opinion is, that the law is correctly stated by Mr. Ronold, but the point has been otherwise determined in the General Court, upon an indictment for an assault.
    
      
      Tbe principal caséis cited in Greeley v. Smith, 10 Fed. Cas. 1076.
    
   The PRESIDENT.

The plaintiff, by bringing separate actions, has removed all objection to the testimony of the witness, since the verdict in one suit, cannot be given in evidence in the other. The objection therefore can only go to the credibility, not to the competency of the witness.

Judgment reversed' — verdict set aside, and new trial awarded, with -directions to admit the examination of the witness.  