
    Smith and another against Rutherford and another.
    ( A declaration may be amended aftci: the jury is sworn, provid* ed it does not change the ground of action.
    ■ > The criterion of trespass is force, directly applied. Alleging iu the declaration, that the defendant did not permit the plaintiff to do certain things, does not necessarily imply trespass.
    fc ; : : A complaint consisting partly of breach of contract and partly of misfeasance in which the plea is not guilty, may be joined with trover.
    Although the evidence proves a trespass, yet if there is a countin trover the plaintiff may wave the trespass and recover in trover.
    A person 1 who is disinte- ¶ rested maybe a witness to < prove a con- , tract made by 1 himself. <
    In Error.
    ERROR to the Common Pleas of Dauphin county.
    
      J. and W. Rutherford, the plaintiffs below, filed a declaration containing two counts. The first was in trover for- a quantity of wheat and rye : the second was to the following effect. . That the defendants were possessed, as administrators of John Wilson, deceased, of twenty-fiye acres of wheats and twenty-five acres of rye, growing in the ground, and appraised as the estate of the said Wilson,■ which they sold at the same price at which it was appraised,' to a certain John Robinson; (but it was not said that the money was paid by Robinson, or the wheat delivered to him.) This wheat and rye the said Robinson sold to the plaintiffs, who tendered to the defendants the sum which Robinson had agreed to pay to them : notwithstanding which the defendants refused to suffer the plaintiffs to enter and cut and carry away the said wheat and rye, and converted the same to their own use.
    ; On the trial of the cause, and after the jury was sworn, the Court permitted .the plaintiffs to strike the second count out : of the declaration, and insert another in lieu of it. ■ In the : new count it was set forth, that the defendants being possessed of the said wheat and rye as part of the estate of the said Wilson, sold and delivered it to Robinson, for the sum of 127" dollars 84 cents, (the price at which it was appraised,) and that Robinson afterwards sold and delivered it to the plaintiffs for the same sum : Nevertheless the defendants although requested by the plaintiffs, did not permit them to enter in and upon the said twenty-five acres of wheat and twenty-five acre's of rye, to cut and carry away the same, but did prevent them from entering into the farm of the said Wilson to cut and carry away the said wheat and rye, and did convert the same to their own use. The defendants objected to the striking out the former count and inserting the new one in the declaration : and the Court sealed a bill of exceptions. 1 ¶ < , 1 <
    The plaintiffs, after having released to John Robinson, offered him as a witness on their behalf! The defendants objected to his competency, but he was admitted by the Court, and an exception taken.
    The Court below charged the jury, among other things, that “ if the defendants sold and delivered the grain to Ro“binson, and if Robinson sold and delivered it to the plain- “ tiffs, and if the defendants took it from, and prevented the ■“ plaintiffs from using it, then the defendants • are liable; “ otherwise not.” .The defendants excepted to the charge of the Court, who sealed another bill of exceptions.
    Upon the writ of error and bills of exceptions, the following errors were now assigned:
    1. That the Court permitted the plaintiffs to substitute a count which changed the nature of the action.
    2. That the first count is in trover and the second in trespass, which cannot be joined in the same declaration.
    3. That John Robinson was an incompetent witness.
    4. That the principles stated in the charge of the Court were erroneous. •
    
      Hopkins and Elder for the plaintiffs in error.
    
      Fisher and Duncan, contra.
   Tilghman C. J.

(After stating the case.) By the 6th section of the “ act to regulate arbitrations and proceedings in “courts of justice,” passed 21st March, 1806, “when there is “any informality in the declaration, which, in the.opinion of “ the Court, will affect the merits of the cause, the plaintiff “ shall be permitted to amend his declaration, on, or before the trial; and if, by such amendment, the defendant is sur- “ prised, the trial shall be postponed until the next Court.” This act, being intended to facilitate the administration of justice, has always received a liberal construction: We have, indeed, refused to permit a total alteration of the cause of action ; as in the case of Shock v. Machesney; .where the plaintiff, after his action, had been several years depending, asked leave to convert an action of slander into an action for a malicious prosecution. But leave has been repeatedly given, ta amend, after the jury were sworn, and all alterations and amendments have been permitted which were necessary to cover the merits of the plaintiff’s case, without .substantially varying the ground of action. By the ground of action I mean the matter expressed as the cause of action. In the present instance it does not appear that this matter has been changed. In the first declaration the plaintiffs complained •that the defendants had sold a quantity of wheat and rye to Robinson, who sold it to them; and that the defendant hindered them from entering on the land, and cutting and carrying away the grain; and further, that the defendants converted it to-their own use. The same complaint is made in the last declaration, with some additional circumstances, viz-that the defendants delivered possession to Robinson, and that Robinson delivered possession to the plaintiffs. It is the same transaction in substance, and the act of assembly would be of little use, if it did not authorise the amendment which •was here permitted.

It is objected .on the part of the plaintiffs in error, that trover and trespass are joined in this declaration. But that is not the case. There is no express trespass alleged; but it is said that the facts amount to a trespass. The plaintiffs did not consider it as a trespass; and if the Court are to exercise their ingenuity in criticising the declaration, it is their duty to support the judgment if possible, the cause having been tried on its merits. The plaintiffs have complained of no violence, or any force applied immediately to their property. But they say, that the defendants did not permit them to enter the farm of Wilson, to cut and carry away their grain, bqt prevented them from ‘so doing. Surely this prevention does not necessarily imply a trespass. Might they not have forbidden them to enter on the land, and would not this have been a prevention. The criterion of trespass, is force .directly applied; but this declaration contains no allegation of force so applied. No trespass, therefore, is alleged. It may be asked, of what nature then, is the injury complained of? It consists partly of breach of contract, and partly of that kind of wrong which is termed misfeasance, and to which not guilty is the proper plea. This complaint then, may very properly be joined with trover, because in both, the process,, the plea, and the judgment are the same.

The charge of the Court is said to be erroneous.' The president told the jury “ that if the defendants sold and deli.vered the grain to Robinson, and Robinson sold and de- “ Ilvered it to' the plaintiffs, and the defendants took it From “ and prevented plaintiffs from using it, then the defendants “are liable; otherwise'not.” The objection is, that if the defendants took the grain from-theplaintiffs, it was ¿'trespass. But would that prevent the defendants from being liable? ‘Is there not a cpunt in trover, and may not the plaintiffs wave the trespass and recover in trover. 'The charge of the Court is to' be applied to the. whole case; and undoubtedly on the issues’joined, the plaintiffs were entitled to a recovery, though the evidence proved both a trespass and a conversion of the property to the use of the defendants. . ' , ,

"' One more question remains to be considered. Was John Robinson a competent witness ? It was he who purchased the grain of the defendants, and sold it to the plaintiffs. It is objected that it is against policy, to permit a' man to prove a contract made by himself. But if he is disinterested at the time of his testifying, there is no rule of la,w which affects his competency. If he stands under suspicious circumstances, the jury must judge of his credit. A bankrupt is admittedto prove' contracts made by himself, because he has no longer an interest. A man who has sold and conveyed land without warranty, is a' witness to establish the title which he has conveyed; and ¿ release from the vendee makes him a witness, even where he Has conveyed with' warranty. Interest is the criterion of competency. Robinson had a release from the plaintiffs; so that in ho event was he liable to an action by them; and as to the defendants, if they could support an action against him for the price of the grain, that action would not be taken away by the plaintiffs’ recovery in this suit. Nay, such recovery would rather tend to induce the defendants to bring suit against Robinson; so that if he swore in favour of the plaintiffs, it would seem to be against his interest. There was nothing, therefore, to prevent his being a witness.

Upon the whole of this case, I am of opinion that the judgment should be affirmed.

Yeates J.

I concur in the opinion delivered. I at once admit that the Court have no power to permit an amendment, which effects .a radical alteration of the ground of action, and such have been our decisions. At the same time, I think it is obvious,' that the 6th section of the act of 21st March, 1806, was intended to have an operation beyond the statute of jeofails, which cured defects in form after verdict. The|amendment sanctioned by the Court in Clark v. Henning, 5 Binn. 35. proceeded on that ground. «But I cannot see any substantial material difference in the second count substituted for the former count. The prevention so much relied on occurs in both of the declarations, although the delivery of the grain is not alleged in the first.

Trover and case in the nature of á tort may be well joined-in the same action. The same process, plea, and judgment is applicable to both. The declaration is not. filed in trespass : and though trespass might be supported for the unlawful taking of another’s goods, yet case may glso be brought in a variety of instances. Thus if one take my horse, and ride him, trover will lie, though he afterwards delivers him to me: for the riding was a conversion* and the re-delivery only goes in mitigation of dámages. Bull. 46.

It is admitted that John Robinson was not excluded from giving testimony on the ground of interest. He was the agent for the heirs of John Wilson, deceased, who were entitled to distribution. The plaintiffs below could have no.cause of action, on account of their release: nor could the defendants, if a verdict was found either for or against them. Nor could the verdict in this cause be legally received in evidence against him. But it is contended that he was inadmissible on the grounds of general policy, from the mischievous consequences which would result from such testimony. No man, it is said, shall be allowed to make evidence for himself. The contract which he was offered to establish, was neither immoral, nor prohibited by any positive, law.. Admit that he would appear before the Court under suspicious cii'cumstances, his credit is to be weighed by the jury. This is the only protection, under the guidance of a well-informed and upright court, which any man can have against wilful false swearing. The same inconveniences may arise in many other cases. A factor who sells goods on commission may bring a suit in his own name, or in the ñamé of his principal, in which latter case he is a competent witness. So, it is settled,' that a bankrupt who has obtained his certificate may be examined as to every matter, except those facts which are necessary to support the commission.

I see no error in the proceedings, nor any misdirection in point of law on the trial, and therefore am of opinion that the judgment be affirmed. .

Brackenridge J. was siqk and absent.

judgment affirmed.  