[61] 61 rule in equity is, that, if the answer contains a positive denial of the case stated in the bill, and it is contradict. ed only by a single witness, there cannot be a decree against the defendant(1) (a); it should seem, therefore, that in such a case, the answer of the defendant cannot be directed to be read at law. And the court has refused to make an order to that effect, where the plaintiff's witness was supported by concurring circumstances.(2) As a party to the suit is not suffered to be witness in support of his own interest, so he is never compelled in courts of law to give evidence for the opposite party against himself. Thus, in a question of settlement between two parishes, the rated inhabitants of either pa- . rish, being in reality the parties to the proceeding, cannot be compelled by the adverse party to answer against their own interest (3); and their declarations are evidence against themselves. (4) But where one of several co-plaintiffs comes forward voluntarily to disprove the defendant's liability to the demand made upon him, he may be admitted with the consent of the *adverse party, though at the same time he defeats the claim of those, who jointly sue with him.(5) For, if the plaintiff were to make a declaration against his interest out of court, evidence of that declaration would be admissible; and how is the proof less credible, said C. J. Mansfield, if, with the consent of the defendant, who waives all objection to his testimony, he declares the same thing upon oath at the time of the trial?(b) (1) See infra. ch. vii. sect. 1. Grager, 3 Campb. 177. (4) R. v Hardwick, 11 Eass, 579. R. v Whitley Lower, 1 Maule & Sel 636, (5) Norden and another v Williamson, I Taunt. 378. (a) Russell v Clark's executors, 7 Cranch Rep. 69 & 89. (b) And, if one of the parties to a suit is sworn and examined, at the request of the other party, the latter cannot afterwards object to it. Miller v Starkes, 13 Johns. Rep. 504. A defendant cannot regularly be witness for co-defendants: but, if no evidence has been produced against him, he is entitled to his discharge, as soon as the opposite party has closed his case, (a) and may then give evidence for the others. (1) If this were not allowed, great injus tice might be done by including witnesses in the process, for the purpose of supporting a false charge. But if there is any, even the slightest evidence against him,' he cannot be discharged before the rest, and the case must go altogether to the jury.(2)(b) So, in trespass against a person, "for that he, together with A. B. &c." committed the wrong complained of, if it appears that A. B. was concerned in the trespass, and that process was sued out against him, and an endeavour made to arrest him, or that the process was lost, he cannot be admitted a witness for the defendant (3): but if nothing is proved against A. B. then he ought to be admitted.(4) The following case is put by Ch. Baron Gilbert: "Trespass against A. and B. for two horses-evidence against A. as to one-and the question is, if he may be a witness for B. in relation to the other; and it seems, that if it were the same fact, and the trespass committed at the (1) Case of Dymoke and others, Sav. 34. pl. 81 R. v Bedder and others. I Sid. 237. Hawk b. 2. c. 46. s. 98. Gilb. Ev 117. Boll. N. P. 285. Case of the Mutineers of the Bounty, cited 1 East, 312. From analogy to this rule, the affidavit of a defendant, who has been acquitted on his trial for a misdemeanor, may be read on behalf of co defendants convicted, when they are [62] (a) Wakely v Hart & others, 6 Binney 316. Paddock v Brown et al, 3 P Wms. 288. State v Shaw, 1 Root 134 --But in Davis v Living, et al, 1 Holt N P. Rep. 275, it was held, that in an action of tort against several, if there be evidence against some, and none against others, it is discretionary with the judge at Nisi Prius, whether he will direct the acquittal of such defendants, against whom there is no evidence at the close of the plaintiff's case, for the purpose of making them witnesses for the co defendants. But such an intermediate acquittal is not a matter which the defendant's counsel can claim of right. (b) Brown et al v Howard, 14 Johns, Rep. 119. Van Deusen v Van Slyck, 15 Johns. 223. * 62 same time and place, he may not be a witness, because he swears to discharge himself; but if it were not the same fact, but two distinct trespasses at different times and *places, arbitrarily joined in the same declaration, then they may be witnesses one for the other, because the oath of one of them has no influence on the fact laid to his charge, but merely goes in discharge of the other."(1) If in an action against several defendants, one pleads his bankruptcy, and the others plead the general issue, the former cannot be admitted to give evidence for the rest, though he may have received his certificate.(2) In a case where one of the defendants on an indictment for an assault, submitted and was fined, and paid the fine, Pratt, C. J. allowed him to be witness for another defendant, considering the trial as at an end with respect to him. (3) (a) But on a joint indictment against several, for a misdemeanor, a defendant, who suffers judgment by default, cannot be a witness either for the others (4) or against them.(5) (b) And in an action on a joint contract (1) Gilb. Ev. 118. Raven v Dunning and another, 3 Esp. N. P. C. 25. Currie v Child and another, 3 Campb. 283. (3) R. v Fletcher, 1 Str. 633. (4) R. v Lafone and others, 5 Esp. N P. C. 155. (5) Bull. N. P. 285. Chapman v Graves, 2 Campb. 333. n. (a) On an indictment against several for larceny, and no evidence appearing against one on the trial; application to admit him as evidence on the behalf of the others was denied. The State v Carr et al, 1 Cox's N. J. Rep. 1. (b) So, where a co-defendant, in a criminal prosecution was tried separately, another defendant was held incompetent, on the ground of his being a party to the record. The People v Bill, 10 Johns. Rep. 95. And where one of the defendants, in an action on a joint contract, has obtained his discharge under the bankrupt law, he is an incompetent witness for the other. Ravenetalt v Dunning and Chilton, 3 Esp. 25. But where process was issued against three joint trespassers, two of whom were taken and the other returned not found, it was held that the de fendant who had not been arrested was a competent witness for the other two defendants on the trial of the cause. Stockham v Jones and others, 10 Johns. Rep. 21. So, if the plaintiff go to trial against some of the defendants, without taking any steps to compel the others to plead, they are competent witnesses for their codefendants. Wakely▾ Hart and others, 6 Binney 316. against two defendants, where one let judgment go by default, Lord Kenyon refused to admit him, as witness for the other defendant, to negative the contract; for, if negatived as to one, it fails as to the other, and the plaintiff could not make use of the judgment by default against him(1); nor is he a competent witness for the plaintiff, for, if the plaintiff succeeds, he will be entitled to a contribution from the co-defendant, and, if the plaintiff fails, he himself will be liable to the whole of the demand.(2) (a) It has been held at nisi prius, that a defendant in an action of trover, who suffers judgment by default, may be witness for the co-defendants, as he is not liable to the costs of the issue tried against the other, and is not himself released, whatever may be the event of that issue. (3) (b) If a material witness for a defendant in ejectment is made a co-defendant, his proper course is to let judgment go by default; but if he plead, the Court will not afterwards upon motion strike out his name.(4) "But in such case," says Mr. Justice Bul ler, "if he consent to let a verdict be given against him for so much as he is proved to be in possession of, *I see no reason why he should not be a witness for another defendant."(5) Where a witness for the plaintiff is by (1) Brown v Fox, Exr. Sum. Ass. 1789, MS. (2) Brown v Brown and another, 4 Taunt. 752. (3) Ward ▾ Haydon and another, 2 Esp. N. P. C. 553. See 2 Campb. 334. P. 285. (So, in an action for repairs done to a vessel against one part owner who Deglects to plead the nonjoinder of the others in abatement, another part owner is not an admissible witness for the plaintiff, to prove the ownership of the defendant; for, although he would be liable as an owner to the plaintiff, in case he failed; or if he succeeded, would be answerable to the defendant for contribution: yet he has an interest by charging the defendant, (a verdict against whom would be evidence of the amount to be paid, whereby to regulate contributions,) to increase the number of part owners, and thus to diminish the amount of contribution or loss, which he would otherwise himself be obliged to sustain. Marquand v Weeb & Weeb, 16 Johns. Rep. 89. (6) Sed quære, for the jury may assess joint damages against all the defendants. Per Tilghman, Ch. J, 6 Binney 319. Bostwick v Lewis, 1 Day 33. mistake made a defendant, the court will on motion suffer his name to be struck out of the record, even after issue joined, and then he may be examined(1): or, in the case of an information, the attorney-general may enter a nulle prosequi as to one of the defendants, and so make him a witness. (2) Though a plaintiff cannot ordinarily examine a defendant as a witness in actions of common law, though nothing be proved against him, (because he is considered as having waived his testimony by making him a defendant,) yet the rule is much less strict in courts of equity, where defendants, who are made parties to a suit without having any interest, (a) are allowed to be examined, either for the plaintiff, or for their co-defendants. (3)(b) (1) 1 Sid. 441. Bull. N. P. 285. (2) Rep. temp. Hard. 163. (3) Barrett v Gore and another, 3 Atk. 401. Ambl. 393. 2 Chan. Cas. 214. 1 Ball & Beatty, 99. (a) So, the guardian of an infant plaintiff, in chancery, may be examined for him, saving all just exceptions, (to be made at the hearing,) Trustees of Huntinglon v Nicoll, 3 Johns. Rep. 566. A defendant having no interest in the event of a cause may be examined on the trial of a feigned issue awarded by the chancellor. Bebee and others v The Bank of New-York, 1 Johns. Rep. 556, 576, 577. But a party in interest, cannot be made a witness by being omitted in the bill; thus, where a bill is filed by one partner against another, a third partner who is not made a party, cannot be a witness for the plaintiff, for, in a suit for settling the concerns of a partnership, every partner ought to be made a party. Waggoner v Gray's Administrators, 2 Hen. & Mun. 603. If the evidence of a defendant be sought for the purpose of charging himself, and in contradiction to his interest, there is no legal objection to his competency, if he chooses to testify. In an action against A. B. & C. in relation to a partnership transaction, subsequent to which B. & C. had obtained their discharge under an insolvent law, it was held that B. & C. were competent witnesses to charge A. for if the act of insolvency created a legal bar, they were no longer parties in interest, and no decree could be had against them, and if it were not a legal bar, they were called to charge themselves in connection with A. and so far from having an interest to support the plaintiff's bill, their interest lay the other way. Reimsdyck v Kane et al, Rep. of the Circuit Court of the United States for the first Circuit, 631. (b) Kirk v Hodgson, 2 Johns. Ch. Rep. 530. |