A nominal defendant in ejectment, wlio afterwards assigns his interest to a co-defendant and quits the possession, being released from all liability, may with his own consent, be examined as a witness for the plaintiif.

The ejectment was commenced against Hagerman alone before tbe revolution, who claimed under Samuel Wallis. Wallis had executed an obligation to him (but not to bis assigns) conditioned to mate him a good conveyance, dated 23d December 1771. On the 22d August 1789, Hagerman assigned the bond to Eoss, who ■was afterwards made a co-defendant in the action, and Hagerman was released from all further liability to Wallis, and quitted the possession of the premises.

Hagerman ivas offered at the trial as a witness on the part of the plaintiff, with his free and full consent; but was excepted to by Eoss. The j udges who tried the cause, were of opinion, that his testimony might be received. Because, 1st. It did not tend to invalidate or contradict either his assignment of the bond with a collateral condition, or the bond itself; and therefore did not affect any instrument to which the witness was a party. 2dly. Ilagerman at the time of the action brought and when issue was joined, was the sole tenant in possession and concerned in interest; but having fifteen years afterwards transferred bis pretentions to Eoss, quit-ted the possession of the premises, and been released by Wallis, *164he ceased to be interested, except as to the costs of suit. He cannot however be produced as a witness, either against his own consent, or the plaintiff’s; but this objection does not lie in the mouth of Ross.

) Hagerman was accordingly sworn, though a nominal defendant; and Samuel Wallis, who was to make the conveyance, was a release. The jury however found for the plaintiff to the entire satisfaction of the court.

On this statement of the case, Messrs. Lewis, Thomas and C. Smith, pro def. withdrew their motion for a new trial, and agreed that judgment should be entered for the plaintiff.