Gates

Mr. Justice Terry concurred.

This was an action of trespass quare clausum fregit," as well as an application to the equity side of the Court for a perpetual injunction.

On the trial of the cause the defendants offered to call as a witness, one C. Nash, who was one of the defendants, though not served with process; to which the plaintiff objected, and the objection was sustained by the Court; this ruling is now assigned as error. •

It is a familiar rule of the common law, that a party to the record cannot be called as a witness, except in chancery proceedings, and in actions of tort, in which the Court may direct one of the defendants, against whom there is no evidence, to be discharged, and permit him to be sworn as a witness. It is urged by the defendants that the mere fact of declaring against a party, is not sufficient to make him a defendant, and that.he should be brought in by service before he is disqualified; that the defendant, Nash, was not interested in the result of the issue between the plaintiff and defendants then before the Court, and not liable for contribution for costs and damages recovered.

In support of this proposition, several authorities have been cited…