#### Savil Wilson *against*Josiah Clark. *(a)*

IN ERROR.

Competency of witness

THE declaration of the defendant in error, charges the ■plaintiff with entering his close, situate in the township of *Deptford,*county of *Gloucester,*on the third day of *November*1814, and taking and carrying away 150 cedar logs and 1000 cedar rails.

The defendant below, pleaded *not guilty.*The cause was tried at the term of *March*1815. After the plaintiff below had closed his evidence, the defendant offered to prove that the logs and rails, for the taking of which the present suit was brought, were cut by the plaintiff on a certain tract of cedar swamp in the county of *Gloucester,*being part ot a tract called *Squancum.*

2. That *Savil Wilson*and *Job Brown*were the owners of, and in the quiet and peaceable possession of that part of the said swamp where the said logs and rails were cut, when the plaintiff entered and cut them.

3. That the plaiiítiff hauled the said logs and rails from the said swamp, to the place where they were taken by the defendant.

4. That the place where the logs and rails were placed by the plaintiff and taken by the defendant, then was in the possession of the said *Savil Wilson.*

5. That the defendant retook the said logs and rails in a quiet and peaceable manner.

And to prove the said matters, the counsel for the defendant did offer in evidence a deed from *John G. Morgan*and others, bearing date *August*5,1813, to *Job Brown*and *Savil Wilson,**for the said part of the swamp, which was read, and did further offer to prove, by *Job Brown,*that he *443and *Savil Wllsm-*immediately took possession of tin- said swmup tun lor the said deed. Aim i,hereupon tne oonnsel for i he plaintiff did object to the said *Job Brown*being affirmed, and the court did refuse to permit the said *Job Brown*to be affirmed.

The plaintiff, afterwards, in further support of the issue, offered *Samuel Ladd*to prove that the aforesaid *Job Brmun*had declared that he and the said *Savil Wilson*had agreed that the said *Josiah Clark*might cut off all the stuff in the lot of the aforesaid swamp, where the said logs and rails were cut, and to account to them if they got the swamp in controversy with the *Jaggards.*To which the counsel for the said *Savil Wilson*did object, and insist that the declaration of the said *Job Brown*ought not to be given in evidence in this cause, but the court did admit the same.

The jury found a verdict for the plaintiff, for one hundred and twenty-four dollars, fifty cents damages.

*Woodruff*and *Ewing.*

1. That *Broum*was a party to the deed, did not make him an interested witness. *Peake*144. The verdict could not be given in evidence for or against him. If there was a recovery against *Wilson,*he could not be compelled to contribute. 2. His confessions were inadmissible. *Kir. Rep.*62, 174. 2 *Barnes*436.

*White*and *Armstrong*contra.

The defendant had offered to prove that the rails were cut from the joint property of *Brown*and *Wilson*and shewn a deed for this purpose, and if this were so, *Brown*was entitled to his share of the profits ; and being a partner, liis confessions were good evidence.

(a)

 See *Wilson vs. Clark, ante 379.*

Sottthakt) J.

The defence set up by *Wilson,*was, that the logs and rails were cut on land belonging to him and *Broum,*carted to land belonging to himself, and that he took them from there. Suppose *Brown*had proved every fact on which the plaintiff relied ; it could not have helped his title to the land, nor put money into his pocket. The verdict could, in no case, have been given in evidence, either for or against him. Were it even *444alleged that he had aided *Wilson*in committing the tresit would not have taken his competency from him. it js not necessary *here, to cite cases to shew that wic- *..'...*. . nesses, *participes cnmmis*and joint trespassers may be sworn. *Brown*was, in every respect, competent. He ought to have been sworn.

By the Court. Judgment must be reversed. *Brown*was a competent witness.

Judgment reversed.