a subsequent case in the same court, Chichester v. Livingston, 1 Code Rep. N. S., 109; 3 Sand., S. C. R., 718, Campbell, J., without referring to Taggard v. Gardner, held that, where the examination of a party as a witness before the trial is sought merely to avoid the necessity of calling him at the trial, it can only take place after issue joined, and that

a. A party may be examined conditionally as other witnesses, where he is about to depart from the State, or on special application for like causes; but such examination can only be had on the previous order of the court.

b. May he be so examined by way of discovery, under a special order to enable the adverse party to answer on reply?

c. "But though the code has abolished actions for a discovery, it has been thought by some that a discovery may be had in the same action, where such discovery is necessary in order to enable the party seeking the discovery to answer or rep ly. This may be so; but in that case such examination ought not to take place, unl ess by special order of the court on cause shown by affidavit as to the necessity of the examination. The party examined is entitled to be examined on his own behalf, on matters pertinent to the issue. This privilege he cannot well avail himself of if he is summoned for examination before he has answered or replied. The fair and, as it seems to me, true construction of the code is, that the examination of the party should take place after issue joined. But there may be exceptions. The party is to be examined as a witness, and he may be examined conditionally. If he is about to depart out of the jurisdiction of the court, and it shall be made to appear that his adversary will probably be unable to examine him after issue joined, or to examine him on the trial of the cause, then such examination may doubtless be had before issue, in the same manner as that of any other witness in the cause who is about to depart from the State." Chichester v. Livingston, supra, per Campbell, J. See note to section 390.

§ 392. [346.] (Amended 1849.) Existing suits. Party, how compelled to attend.

The party to be examined, as in the last section provided, may be compelled to attend, in the same manner as a witness who is to be examined conditionally; and the examination shall be taken and filed by the judge in like manner, and may be read by either party on the trial.

See note to section 391.

393. [348.] (Amended 1849.) Existing suits. Testimony of party may be rebutted.

The examination of the party, thus taken, may be rebutted by adverse testimony.

d. In a case tried in a justice's court the plaintiff called the defendant as a witness; and, not being satisfied with the evidence given by the defendant, the plaintiff called witnesses to contradict the defendant; and the plaintiff had judgment. From this judgment the defendant appealed to the court of common pleas for the city and county of New York, on the ground, that as the plaintiff had called the defendant, he, the defendant, thereby became the plaintiff's witness, and it was not competent for the plaintiff to call witnesses to contradict his own witness; but the court held otherwise, and affirmed the judgment. Armstrong v. Clark, 2 Code Rep., 143.

394. [347.] (Amended 1849.) Existing suits. Effect of refusal to testify.

If a party refuse to attend and testify as in the last four

sections provided, he may be punished as for a contempt, and his complaint, answer, or reply, may be stricken out.

a. In Anderson v. Johnson, 1 Code Rep., 95; 1 Sand. S. C. R., 713, after an issue on a joint defence, the plaintiff obtained an order for one of the defendants to show cause why he should not be examined as a witness in the cause before the trial. The order was silent as to what would be the consequence if he failed to show cause. The defendant failed to show cause, and the plaintiff took an order reciting the former order and defendant's default, and directing him to attend on the service of a subpæna at a time designated, and submit to be examined, or in default that his defence should be stricken out. The defendant appealed from this order; and it was set aside as not authorized by the first order; and the court said that on a default under the first order the plaintiff could ask nothing more than it contemplated in terms; besides, to give effect to the order would be to strike out a joint defence, and thus to punish parties who had committed no offence.

b. "On one party to a suit being served by his adversary with a previous notice of five days to attend and be examined, and on being served with a subpoena to testify, and on being paid the usual fee payable to a witness subpænaed to attend a trial, it is his duty to attend and submit to be examined; and on his making default in either of these particulars, he will be liable to be punished as for a contempt of court." Taggard v. Gardner, 2 Code Rep., 82. It seems, however, from the case Chichester v. Livingston, 3 Sand. S. C. R., 718; 1 Code Rep. N. S. 109, that the party is not bound to attend and be examined until after issue, except by a special order of the court. See note on section 391.

C. "Bennett v. Hall, 10 Leg. Obs., 191, it appeared the defendant was subpœnaed on Saturday to attend to be examined on the following Tuesday, and in pursuance of previous arrangements he sailed for California on the Monday preceding. A motion for an order to strike out the answer for his non-attendance was denied.

§ 395. [349.] (Amended 1849.) Existing suits. Testimony by a party not responsive to the inquiries, may be rebutted by the oath of the party calling him.

A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf, in respect to any matter pertinent to the issue. But if he testify to any new matter, not responsive to the inquiries put to him by the adverse party, or necessary to explain or qualify his answers thereto, or discharge when his answers would charge himself, such adverse party may offer himself as a witness on his own behalf, in respect to such new matter, and shall be so received.

d. This section is identical with section 349 of the code of 1848; and under that section in a case where the defendant on the trial of a cause called the plaintiff as a witness, and in reply to a question put to him by the court, the plaintiff testified to new matter, going beyond the point to which he was examined by his adversary, it was held, that the defendant was entitled to offer himself as a witness for the purpose of answering such new matter. Myers v. McCarthy, 2 Sand., 399.

e. In an action on a contract by which the defendant agreed to make a quantity of scythe snaths for the plaintiff within a specified time, the plaintiff called the defendant as a witness, who testified that he did not within the time specified make any scythe snaths for the plaintiff. On cross-examination by his own counsel he testified that the reason why he did not make the snaths was that he was under no obligation

to make any, as he had made no agreement with the plaintiff, but was working merely as an experiment, held, that the defendant had not been examined on his own behalf to any new matter, so as to entitle the plaintiff to be examined as a witness in his own behalf. Chamberlain v. Hamilton, 18 Barb., 324.

a. Where the defendant has by his answer set up a counter-claim, and on the trial the plaintiff calls him as a witness, and he in addition to proving the plaintiff's demand, proved the counter-claim set up in the answer, held, that the plaintiff might offer himself as a witness to contradict the defendant. Harpell v. Irwin, 1 Abbott, 144.

b. Where a party to a suit is called as a witness by his adversary, and testifies to an independent matter in his own behalf, the court and jury are not bound to believe him and decide according to his testimony. Roberts v. Gee, 15 Barb, 449.

Persons for whom action is

$396. [350.] Existing suits. brought, or defended, may be examined.

A person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner, and subject to the same rules of examination, as if he were named as a party.

c. Who are regarded as "persons for whose immediate benefit a suit is prosecuted or defended?" See note to section 399.

§ 397. (Amended 1851-1852.) Existing suits. Examination of co-plaintiff, or co-defendant.

A party may be examined on behalf of his co-plaintiff or of a co-defendant, as to any matter in which he is not jointly interested or liable with such co-plaintiff or co-defendant, and as to which a separate and not joint verdict or judgment can be rendered. And he may be compelled to attend in the same manner as at the instance of an adverse party; but the examination thus taken shall not be used in behalf of the party examined. And whenever in the case mentioned in sections three hundred and ninety and three hundred and ninety.one, one of the several plaintiff's or defendants, who are joint contractors, or are united in interest, is examined by the adverse party, the other of such plaintiff's or defendants may offer himself as a witness to the same cause of action, or defence, and shall be so received.

d. This section before the amendment of 1851 was as follows: A party may be examined on behalf of his co-plaintiff or co-defendant; but the examination thus taken shall not be used on behalf of the party examined. And whenever, in the case mentioned in sections 390 and 391, one of several plaintiffs or defendants, who are joint contractors, or are united in interest, is examined by the adverse party, the other of such plaintiffs or defendants may offer themselves as witnesses to the same cause of action or defence, and shall be so received.

e. The amendment of 1852 was the insertion of the part printed in italic in lieu of these words "unless he is examined at the instance of the adverse party."

a. In an action on a promissory note made by the defendants, who were partners, the defence was usury, and after the plaintiffs had proved their case, counsel for the defence offered Wilbur, one of the defendants, as a witness for his co-defendant. The plaintiff's objected to Wilbur's being admitted to testify, and the court, Parker, J., under the code of 1849, sustained the objection. Farmers' and Mechanics' Bank v. Wilbur and Radley, 2 Code Rep., 33. But the general term held otherwise, and granted a new trial. 1 Code Rep. N. S., 61.

b. In an action for a breach of contract, alleged by the plaintiffs to be the joint contract of the defendants Doe and Roe, one of the defendants (Doe) made no answer, and judgment for want of an answer was taken against him; the other defendant answered separately, denying that the contract declared on was the joiat contract of him and the other defendant. On the trial Doe was examined as a witness for the plaintiff, and testified that the contract was made jointly by him and the other defendant, Roe. When the plaintiff had closed his case, the defeudant Roe was offered as a witness on his own behalf, for the purpose of contradicting the evidence of Doe, and testifying that the alleged contract was not the joint contract of the defendants. The admission of this evidence was objected to by the plaintiff; but the objection was overruled, the evidence received, and the defendant Roe had a verdict in his favor. Comstock v. Roe, 2 Code Rep., 140; Comstock v. Bayard, 2 Sand., 705.

c. In actions for a tort commenced before the code, a defendant on whom process was not served, and who has not appeared, cannot be a witness for a co-defendant whom he is liable to indemnify in case of a recovery. Dodge v. Averill, 5 Pr. R, 8. Such a defendant is nominally a party to the action and interested. Ib. And per Hand, J., I do not think section 397 removes the objection. If that section applies to what were actions at law at all, it is qualified by section 399. Ib.

d. In Parsons v. Pierce, 3 Code Rep., 177; and Finch v. Cleveland, 10 Barb. 290; it was held that in actions for tort commenced under the code, one defendant may be called as a witness on behalf of his co-defendant. And in Parsons v. Pierce it was further held, that in actions commenced before the code went into effect, one defendant may call his co-defendant as a witness, but he can testify only to such facts as would entirely acquit tae party calling him. He cannot give testimony to affect the amount of damages merely.

e. In Selkirk v. Waters, 1 Code Rep., N. S., 35, it was held that one co-defendant is a competent witness for another in all joint and several actions whether on contract or tort, and in all actions where a separate judgment could be rendered in favor of the co-defendant, provided the defendant called as a witness is not disqualified by reason of interest.

f. In Johnson v. Wilson (in note, 1 Code Rep., N. S., 40), the New York common pleas held that one co-defendant could not be examined for another in an action on a joint liability, whether on contract or tort; and the same was held in Frost v. Hanford, 1 Smith, 540.

g. In the superior conrt, Sandford, Mason, and Campbell, JJ., at general term. held, that in an action on a joint and several bond against three defendants, one of them being principal and the others sureties, the parties defendant might be examined as witnesses for each other under this section. Mayor, Sc., of N. Y., v. Price, 1 Code Rep. N. S., 85; 4 Sand. 616.

h. In an action for damages arising from a false warranty, one of several defendants may be called as a witness by and on behalf of his co-defendants. Holman v. Dord, 1 Code Rep. N. S., 331; 12 Barb. 336.

i. In an action against two defendants as makers of a joint and several promissory note, one defendant cannot examine the other as a witness to establish the defence of usury. Ely v. Miller, 1 Abbott, 241.

j. Semble, that if the action had been on a several and not joint note, one defendant might have examined the other as a witness to establish the defence of usury, or any other defence. 1b.

k. In an action for assault and battery, and in all other actions of tort, a verdict and judgment may be rendered in favor of one and against another defendant; that

is, a verdict or judgment separate and not joint may be rendered in such actions; one defendant may be examined for his co-defendant as to any matter as to which a separate and not joint verdict or judgment may be rendered, and as to any matter in which he is not jointly interested or liable with such co-defendant. In all actions a defendant is competent witness for his co-defendant. His admissibility as a witness cannot be questioned, but he is restricted as to the subject matter of his examination. If any question is asked tending to establish a defence of which the co-defendant cannot separately avail himself, the plaintiff is at liberty to object and the court must exclude it. Where a witness is called to the stand who is competent to be sworn and to testify to some matters, but who may not speak to other matters, it is not proper to object to his competency generally and exclude him. Beale v. Finch, 9 Pr. R., 390; 1 Kernan, 128; and to the like effect is Munson v. Hegeman in the court of appeals (see 9 Pr. R., 388, overruling Munson v. Hegeman, 5 Pr. R., 223; 10 Barb., 112.)

a. The question has arisen whether a defendant when called to testify for his codefendant, can be examined to mitigate the amount of damages as against the defendants for whom he testifies. # He is jointly interested, because the damages are indivisible. There can be but one verdict, and for one amount, against all those found guilty. * * If, however, the case made out against the defendant who is called as a witness be a doubtful one, I see no objection to receiving his testimony to mitigate damages for his co-defendants, under proper instructions to the jury to consider it if they acquit the witness, and to reject it if they find him guilty. Parker, J. Beale v. Finch, supra.

b. Before the amendment in 1851 of the 397th section, it authorized a party plaintiff or defendant to examine his co-plaintiff or co-defendant in all actions, whether upon joint contract or not, the same as any other witness;-it was without exception or restriction. But the effect to be given to his testimony after it was received, was limited. That is, upon the issue between the adverse party and himself, his testimony was not to be considered at all. The section stated, that the examination thus taken should not be used on behalf of the party examined. The section was amended in 1851, so as to restrict the examination of a party to matters in which he is not jointly interested or liable with the party calling him as a witness, and in respect to which a separate and not a joint verdict or judgment might be rendered. It was supposed that under this amendment a new rule of examination and test of competency were to be applied. Instead of examining the witness, when received, as to every matter pertinent to the issue as before, he might be examined as to some matters, and as to other matters his testimony would be excluded. Two elements were involved in the determination of the question, whether the testimony of such a witness would be admissible: the one related to the question of interest, and the other to the character of the judgment which might be rendered in the action. If a joint judgment could not, or a separate judgment could, be rendered in respect to the matter as to which it was proposed to examine the party witness, and he was found not to be interested or liable with the co-plaintiff or co-defendant calling him, in respect to such matters, then and then only could his testimony be received. Harris, J., Lefever v. Brigham, 10 Pr. R., 385.

c. The decision in Beale v. Finch (supra) must be regarded as in effect repealing the clause of the amendment relating to "a joint verdict or judgment." Ib.

d. Now there can be no possible case in which a party may not offer his co-plaintiff or co-defendant as a witness, and have him received. For there is no case in which a separate judgment may not be rendered for one plaintiff or defendant and against another. The party, therefore, is in all cases, when offered, to be admitted as a witness. Having been admitted and sworn, his examination is to be restricted to "matters in which he is not jointly interested or liable with the co-plaintiff or co-defendant" who has called him. 1b.

..

e. The practice suggested in the leading opinion of Beale v. Finch, supra, of receiving the testimony of parties de bene esse in doubtful cases," and then instructing the jury that if they acquit the witness, and thus find him competent, they should consider the testimony, and if they convict him then reject the testimony, can never be tolerated. Ib.

f. Where on the trial of an action against two persons for a joint assault, no evi